Table of Contents - University of Sydney 2015-16/Legal... · Table of Contents Summary of resources ... Law Extension Committee ... Cases cited throughout the coursebook are in summary

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Table of Contents Summary of resources 3 Relevant legislation 3 Useful websites 3 Topics

1 Introduction to the regulation of solicitors and barristers 5 Clyne v NSW Bar Association 8

2 Admission and expulsion from the legal profession 11 Re Davis 13 Re B 14 NSW Bar Association v Livesey 17 Prothonotary v Costello 19 Ziems v Prothonotary 23

3 An advocate's duty to the court 25 Rondel v Worsley (including quote re O’Connell) 27 Tombling v Universal Bulb Co 34 Meek v Fleming 35 Lewis v Ogden 38 Ex parte Bellanto 41 Mechanical & General Inventions Co v Austin 44

4 A barrister's duty to the client 47 Nangus v Charles Donovan 51 Harvey v Phillips 52

5 A barrister's duty to others 55 R v Apostolides 58 Kelly v LTE 62

6 Solicitor's duties and the regulation of solicitors 65

7 Misconduct/unsatisfactory professional conduct 80

8 The disciplinary apparatus 89

9 Confidentiality and privilege 102

10 Protecting the client and his/her lawyer 129

COPYRIGHT NOTICE

© 2015 Editorial work and notes are the copyright of the Law Extension Committee.

Copies and extracts from authorised law reports, Legal Profession Disciplinary Reports, unreported judgments

and statutes are made on behalf of the University of Sydney, pursuant to Part VB of the Copyright Act 1968 (Cth)

on 13 October 2005.

All Riley extracts are the copyright material of Butterworths and the College of Law, and are reproduced here with

their express permission.

Law Extension Committee Legal Ethics Coursebook

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Summary of resources Relevant Legislation:

Legal Profession Uniform Law (NSW)

Legal Profession Uniform Law Application Regulation 2015.

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015

Cases cited throughout the coursebook are in summary form only and students should examine them in their full form, by accessing them from the Law Extension Committee's website or through a relevant internet law source such as AustLII, rather than relying upon the summaries either in the coursebook or any other casebook.

Useful Websites

NSW Bar Association http://www.nswbar.asn.au

Including the Bar Rules http://www.nswbar.asn.au/barrul.htm

NSW Law Society http://www.lawsocnsw.asn.au Including the Solicitors Rules http://www.lawsociety.com.au/ForSolictors/professio

nalstandards/Ruleslegislation/SolicitorsRules/index.htm

LEC Legal Ethics site with links to all relevant legislation and cases available on the internet

http://www.usyd.edu.au/lec/subjects/ethics

AustLII http://www.austlii.edu.au

Scaleplus - Commonwealth Attorney-General's Department

http://scaleplus.law.gov.au

http://www.nswbar.asn.au/barrul.htm

http://www.lawsocnsw.asn.au/


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1. Introduction to the regulation of solicitors and barristers

The significance of ethics: Wasserstom is cited in the Ross and MacFarlane casebook on ethics as concluding that -

"the lawyer-client relationship renders the lawyer at best systematically amoral and at worst more than occasionally immoral in his or her dealings with the rest of mankind."

The 1996 Law Council of Australia, Model Rules of Professional Practice state that -

"Practitioners should serve their clients competently and diligently. They should be acutely aware of the fiduciary nature of their relationship with their clients, and always deal with their clients free of influence of any interest which may conflict with their client's best interests. Practitioners should maintain the confidentiality of their client's affairs, but give their clients the benefit of all information relevant to their client's affairs of which they have knowledge. Practitioners should not, in the service of their clients, engage in, or assist, conduct that is calculated to defeat the ends of justice or is otherwise in breach of the law."

Rule 7 of the Barrister's Rules (N.S.W.) states that -

"Barristers should be free to choose how they lawfully practise as barristers except only in those cases where the unchecked exercise of that freedom would threaten harm to the greater public interest that barristers' conduct be honourable, diligent, especially skilled, disinterested and competitive and that access to barrister' services be enhanced."

1.1 What, if anything, do you think the Law Council's Model Rules or NSW Bar Rules (s.7) provide as a counter to the Wasserstrom quotation? 1.2 What are the differences and do you support them?

Consider this extract from the preamble to the Model Rules, under the section on Duty to the Court:

"Barristers owe duties to the courts, to other bodies and persons before whom they appear, to their clients, and to their barrister and solicitor colleagues."

1.3 Do ethics and morality take different definitions when applied generally to the legal profession or to the lawyer-client relationship? If so, what is the basis of this tension? 1.4 What is the significance of the word competitive in Rule 7 of the Bar Rules? 1.5 Does competition have the potential to suspend ethics in the pursuit of patronage or the client's desired outcome?


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Regulation of the legal profession: The legal profession has maintained a number of practices to ensure that only those who have met its requirements for admission can be registered and practise as legal practitioners. Compared to other occupational groups lawyers enjoy considerable protection from competition based on the requirements for registration. In recent times government has looked closely at the activities of the profession in terms of perceptions of non-competitive and monopoly practices, all of which has been stringently resisted by legal practitioners.

1.6 What, if anything, do you believe is the value of a restrictive path of entry to the legal profession? 1.7 Whose interests do such practices fundamentally serve? 1.8 Should the profession be self-regulating or not? Should the Legal Services Commissioner and a bureaucracy replace assessment by "peers of good repute and competency"?

Regulation of Barristers:

1.9 Consider the following questions and then prepare a set of discussion points about the appropriateness of a set of fundamental rules for the legal profession.

What are the issues highlighted by the concept of fundamental rules?

What do Clyne and Ziems' cases tell you about the nature of fundamental rules as they apply to legal practice?

Consider Re Davis and the accepted definition of fit and proper person; where has the concept been challenged and why is it important to the notion of fundamental rules?

What differences, if any, exist between the concepts of conventional and fundamental rules?

Do fundamental rules lose their essential character if reduced to writing?

Riley (1997) extracts:

[Paragraph 1005]

IN 1823, when the Charter of Justice came into effect, in New South Wales, as an administrative

delegation under the Imperial Statute 4 George IV C96, Clause 10 gave the Supreme Court of New

South Wales power to admit and enroll barrister and solicitors who had been admitted to practice in the

United Kingdom, to act in the same roles in New South Wales.

The 1970 Supreme Court Act provided, at s48 for the Court of Appeal to exercise the court's power to

admit barristers and solicitors, but without any new legislative power to admit granted.

The Legal Profession Act 1987 revoked the Supreme Court Charter, insofar as it related to the

admission of barristers and solicitors (ss4 and 11). Both barristers and solicitors were expressly stated

by the Act to be officers of the Supreme Court.

The Legal Profession Act as amended by the Legal Profession Reform Act 1993 provides for the

Supreme Court to "admit and enrol natural persons as legal practitioners."


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The court is empowered by s4 "to hear and determine any application made for the admission as a

legal practitioner of a person approved by the Admission Board as a suitable candidate for admission."

At the commencement of the Reform Act amendments on 1 July 1994 the admission of persons by the

court as solicitors and barristers ceased.

All lawyers are admitted by the Supreme Court of New South Wales by a common process under the

title legal practitioner. Section 5 provides that a legal practitioner is, on and from admission, "an officer

of the Supreme Court".

The Legal Practitioners Admission Board first considers applications for admission and s12 of the Act

requires it to consider "whether it is satisfied that (a) candidate (for admission) is of good fame and

character" and is other wise suitable for admission. By the process of admission the court accredits a

legal practitioner as a fit and proper person to discharge the responsibilities which that office involves.

A person cannot engage in practice after admission until they have obtained a practising certificate. The

Law Society of New South Wales has a statutory function to issue practising certificates to those

wishing to practice as a solicitor; and, the New South Wales Bar Association has the statutory function

if issuing practising certificates to legal practitioners wishing to practice as barristers.

Regardless of common admission, the Legal Profession Act still preserves, in the statutory regime for

the issuing of practising certificates, the division between solicitors and barristers in New South Wales.

The Supreme Court, when determining whether the name of a legal practitioner should remain on the

Roll of the Supreme Court, must determine the continuity of accreditation which entry onto the Roll

implies.

In Re Weare the test was stated as -

Is the Court, having regard to the circumstances brought before it, any longer justified in

holding out the solicitor in question as a fit and proper person to be entrusted with the

important duties and grave responsibilities that belong to a solicitor?

Section 17, of the Legal Practitioners Act, revokes any inherent power/jurisdiction of the Supreme

Court to admit barristers and solicitors (or legal practitioners), and, provides that "the Supreme Court

Charter remains revoked in New South Wales, as it relates to the admission of barristers, advocates,

proctors, solicitors and attorneys."

Section 17 is unaffected by a new s13A, effective from 1 April 1997, by the Legal Profession

Amendment Act 1996, which enables the Admission Board to refer an application for admission to the

Supreme Court.

The Legal Profession Amendment Act (National Practising Certificate) Act 1996, establishes a national

practising certificate scheme enabling a person who is authorised in one State to practise law in an

equivalent way in other States or Territories participating in the scheme.

The Act requires the Law Society of New South Wales to give effect to practising certificates issued to

legal practitioners in other States and Territories recognised by the Attorney General as having

'corresponding' legislation.

An interstate legal practitioner practising in New South Wales under the Scheme will be deemed to be

an officer of the Supreme Court of New South Wales.


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Case extracts:

CLYNE v THE NEW SOUTH WALES BAR ASSOCIATION (1960) 104 CLR 186

[After this case Mr Clyne became the bane of the tax commissioner and protected tenants in Sydney and

for a time was a magistrate in Gambia. His intellectual brilliance may have led to his downfall in

planning the tactics to remove his opposing solicitor in a family law dispute. This is one of the seminal

cases and the excerpts are from the joint judgment published by the High Court. The case has

particular value in the adoption of the types of rules, which bear on advocates. It is fitting that the first

case should be a monumental one. The question arises whether the transmission of a fundamental rule

into writing converts its character.]

THE COURT delivered the following written judgment:-

This is an appeal from an order of the Full Court of the Supreme Court of New South Wales. That order

is that the name of the appellant be struck off the roll of barristers of the State of New South Wales on

the ground that he has been guilty of such grave professional misconduct as shows him not to be a fit

and proper person to practise as a barrister. The charges made against him arose out of four

prosecutions for indictable offences and the conduct of these by the appellant at the preliminary hearing

before a magistrate. These prosecutions were, on the advice of the appellant, launched by a client of his

against a solicitor, and were admittedly devised as a means of intimidating that solicitor into ceasing to

act for a certain lady in certain civil proceedings pending between her and that client. In opening the

proceedings before the magistrate the appellant deliberately used the occasion to make a savage public

attack on the professional character of that solicitor. He made that attack in extravagant terms, alleging

fraud, perjury and blackmail. He knew that he had no evidence to substantiate such allegations. At the

end of his opening he invited the man whom he was prosecuting for a crime to defend himself before

any evidence had been given against him, and intimated that, if he were to cease to act for his client, the

criminal proceedings would have achieved their object and could be discontinued. It is necessary, of

course, that we should explain our view in some detail, but we may say at once that we are of opinion

that the Supreme Court was entirely right in the conclusion which it reached.

With regard to the jurisdiction of the Supreme Court, it is sufficient to refer to Ziems v The

Prothonotary of the Supreme Court of N.S.W. (1). The words "fit and proper person" are the words

used in the Charter of Justice of 1823, which issued under the authority of the Imperial statute 4 Geo.

IV, c. 96, and by which the present Supreme Court of New South Wales was constituted. Clause 10 of

the Charter provided for the admission of persons to practise in the Court. It empowered the Court to

approve, admit and enrol persons who had been admitted at Westminster, Dublin or Edinburgh “to act

as well in the character of Barristers and Advocates as of Proctors, Attorneys and Solicitors in the said

Court". Persons so admitted were authorized “to appear and plead and act for the suitors of the Court,

subject always to be removed by the said Court from their Station therein, upon reasonable cause". It

was further provided that if there should not be a sufficient number of such persons in the Colony

competent and willing to appear for the suitors of the Court, then the Court might admit other “fit and

proper persons according to such general rules and qualifications as it might make. In Ziems's Case (1)

Kitto J. said: “The issue is whether the appellant is shown not to be a fit and proper person to be a

member of the Bar of New South Wales. It is not capable of more precise statement. The answer must

depend upon one's conception of the minimum standards demanded by a due recognition of the peculiar

position and functions of a barrister “.

*******************

p 193 The excuse for opening this matter which is put forward by the appellant in his letter to the Bar

Association has merely the effect of making matters worse. He says that he was entitled to open this

matter, because he had served a subpoena on Mr. Mann to produce all his books of account, and he

hoped, on examining them, to find evidence to show that the defendant was in financial difficulties.

This, of course, is absurd. It may or may not have been improper to serve a subpoena to produce

documents on Mr. Mann, but the only person in court who could have proved the documents was Mr.

Mann himself, and he was, of course, not a compellable witness. The "excuse" really amounts to no


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more than a confession by the appellant that he was not in a position to prove the grave allegation which

he was making. It is an aggravating fact that, when Mr. Mann's counsel said that the documents were

not produced, the appellant suggested to the magistrate that the reason for their non-production could

only be either that Mr. Mann was contemptuous of the Court's process or that the documents would or

might incriminate him.

********************

p 199 The rules which govern the conduct of members of a body of professional men, such as the Bar

of New South Wales, may (though there is, of course, no logical dichotomy) be divided roughly into

two classes. In the one class stand those rules which are mainly conventional in character. To say this

is not to deny their importance from the point of view of the client. But they are designed primarily to

regulate the conduct of members of the profession in their relations with one another. Many of these

rules are reduced to writing, and they are from time to time interpreted, and perhaps modified to fit

specific cases, by resolutions of the governing body of the profession. Examples of this class in the

case of the Bar are the rule which forbids advertising, the rules with regard to retainers, the rule that one

of Her Majesty's counsel must not appear without a junior. A breach of any of these rules is treated

seriously, but would not warrant disbarment at least unless it were shown to be part of a deliberate and

persistent system of conduct.

Rules of the other class are not merely conventional in character. They are fundamental. They are, for

the most part, not to be found in writing. It is not necessary that they should be reduced to writing,

because they rest essentially on nothing more and nothing less than a generally accepted standard of

common decency and common fairness. To the Bar in general it is more a matter of “does not” than of

“must not”. A barrister does not lie to a judge who relies on him for information. He does not

deliberately misrepresent the law to an inferior court or to a lay tribunal of. Carr v Wodonga Shire. He

does not, in cross examination as to credit, ask a witness if he has not been guilty of some evil conduct

unless he has reliable information to warrant the suggestion which the question conveys.

As the learned judges of the Supreme Court have said, a member of the Bar enjoys great privileges both

de jure and de facto. In particular his privilege in relation to defamatory statements made by him in

court is not qualified but absolute. It is perhaps worth while to quote yet again the oft-quoted words of

Lopes L.J. in Royal Aquarium and Summer and Winter Garden Society v. Parkinson. His Lordship

said: " This ' absolute privilege' has been conceded on the grounds of public policy to ensure freedom of

speech where it is essential that freedom of speech should exist, and with the knowledge that Courts of

justice are presided over by those who from their high character are not likely to abuse the privilege,

and who have the power and ought to have the will to check any abuse of it by those who appear before

them”. The last thing we would wish to do would be to say anything which might be thought to curtail

this freedom of speech, which public policy demands. Cases will constantly arise in which it is not

merely the right but the duty of counsel to speak out fearlessly, to denounce some person or the conduct

of some person, and to use such strong terms as seem to him in his discretion to be appropriate to the

occasion. From the point of view of the common law, it is right that the person attacked should have no

remedy in the courts. But, from the point of view of a profession which seeks to maintain standards of

decency and fairness, it is essential that the privilege, and the power of doing harm which it confers,

should not be abused. Otherwise grave and irreparable damage might be unjustly occasioned. The

privilege may be abused if damaging irrelevant matter is introduced into a proceeding. It is grossly

abused if counsel, in opening a case, makes statements which may have ruinous consequences to the

person attacked, and which he cannot substantiate or justify by evidence. It is obviously unfair and

improper in the highest degree for counsel, hoping that, where proof is impossible, prejudice may

suffice, to make such statements unless he definitely knows that he has, and definitely intends to

adduce, evidence to support them. It cannot, of course, be enough that he thinks that he may be able to

establish his statements out of the mouth of a witness for the other side.

***************************************************************************


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2. Admission and expulsion from the legal profession Pre-admission nondisclosure - prior misconduct: In Davis the court held that the failure to disclose a charge for breaking and entering committed more than twenty years prior to admission constituted grounds for disbarment. In Thomas the court went even further to state that the rules, duties and obligations governing admission as a barrister were not capable of being applied in part. However, in Ex parte Lenehan, the High Court, on appeal, overturned the decision of the Supreme Court of New South Wales which refused admission to an applicant who, as an articled clerk some twenty years before, had committed an offence of dishonesty. In its judgment the High Court noted that the applicant had lived an exemplary life, since the offence, including distinguished war service.

2.1 If there are a fundamental set of principles, then should the Court have the capacity to consider issues other than those that impact upon those fundamental rules? Why do you think the result was different between Davis and Lenehan?

Truthfulness: In Re B, the court took the view that truthfulness was fundamental to practising as a barrister and that Bacon could not argue that an act of dishonesty committed when a student activist was not material to her application to practice as a barrister. In fact it was argued that knowingly representing an untrue statement as to the origins of bail monies in a matter before the court was an action which fundamentally illustrated a propensity for untruthfulness. In Wentworth the court cited a number of long running disputes between the Bar Association and Ms Wentworth and other legal proceedings in which Ms Wentworth was perceived to manipulate the processes of the court. These were cited as examples of inappropriate conduct and lack of truthfulness in making applications to the court. The Bar Council opposed her admission and the court upheld their objections.

2.2 Why do you believe that the court takes the view that acts of untruthfulness should stand as a fundamental barrier to admission?

Interference with administration of justice: Bribery In Pangello the case, for professional misconduct, was made out on the basis that Pangello had offered what could only be taken as a bribe to a police officer with whom he was involved in a matter. Although he attempted to excuse his behaviour the court declared that there was no doubt that he intended the breach of the law for which he was found guilty.

2.3 What is the principle of legal ethics that the judgment sustains and why is it important that it does so?

Suborning witness The Model Rules clearly state that a practitioner must not corrupt and be careful in presenting the evidence of a witness. In Kennedy v The Council of the Incorporated Law Institute of New South Wales the High Court upheld the Institute's decision to strike Kennedy from the roll of solicitors. The court held that his actions, though not unlawful, constituted misconduct in general terms, since he used the force of his position and a series of implied threats in an attempt to have a witness change her statement, to the benefit of his client.


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As McTiernan stated - a solicitor for a party in an action (is) not at liberty to employ whatever tactics might contribute to his client's success. See also Lord Reid's statement in Rondel v Worsley.

2.4 What does this general reading of professional misconduct say about the relative duties owed to the court and the client by a legal practitioner?

Conduct in court A finding of professional misconduct does not always lead to the striking off of a legal practitioner. The tribunal must consider fitness to remain on the roll before making this protective order. In Costello's case the Prothonotary detailed some eleven instances of Costello's conduct which were deemed to have been deliberately constructed to interfere with the proper administration of justice, and, for which it required the barrister to be struck off. However, the court determined that the factual basis for each instance should be examined, and, that following that examination professional misconduct was found, however, some of the actions complained about could also be construed as reasonable tactics or reasonable by-products of the adversarial system.

2.5 On the basis of the finding in Costello's case:

How much is enough?

How should a barrister's conduct in terms of tactics be compared against his/her obligations of acceptable professional conduct in court?

Is instinctive reaction or deliberation relevant?

Conduct outside practice: The common theme in cases addressing the distinction between profession misconduct and personal misconduct, is whether the personal misconduct substantively affects or has the potential to influence the professional conduct or activities of the practitioner. In Re H the Official Visitors of the Inns of Court, on hearing an appeal from a charge of conduct unbecoming, took the view that H's personal behaviour did not significantly affect his standing or performance as a barrister, though it may be personally embarrassing. They therefore reinstated his practising privileges and substituted an official, though unpublished, reprimand. In Ziems case the majority of the High Court chose, on appeal to go behind the events resulting in the conviction, though the Supreme Court had not. The majority found that the facts of the case did not show intent on the part of Ziems at that the outcome of the court case could have resulted in a different outcome if additional matters had been addressed. Their view was that the conviction itself did not show intent or illustrate inherent wrongful qualities within Ziems; particularly any which would go to his professional obligations.

2.6 Ross argues that the issues dealt with by each of these cases are the same as the criteria used to determine the suitability for admission cases, such as Re B, Lenehan, Davis and others.

Do you agree?

On what do you base your view?


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Case extracts:

Re DAVIS (1947) 75 CLR 409

[This case deals with what are the characteristics of a fit and proper person to remain on the Roll.

Significant non disclosure when seeking admission is contrary to the standard. This case was referred

to in Ziems. Excerpts are taken from the separate High Court judgments. The first two from Latham

CJ, the remainder from Dixon J. Note now the statutory jurisdictions of the Legal Profession

Admission Board and the Legal Services Tribunal. ]

The Prothonotary of the Supreme Court reported to the Court the fact of the conviction and a rule nisi

was made calling upon the appellant to show cause why he should not be disbarred and why his name

should not be removed from the roll. The Full Court, holding that it had jurisdiction to remove a

barrister’s name from the roll, decided that the appellant was not a fit and proper person to remain on

the roll because he was not a person of good character, in that he had committed the criminal offence

mentioned, had failed to disclose that fact to the Board and the solicitors from whom he had obtained

certificates of character, and had therefore deceived the Board and those solicitors.

Upon an application for removal of the name of a legal practitioner from the roll, the question which

has to be determined by the Court is whether he is a fit and proper person to remain as a member of the

profession. In Southern Law Society v. Westbrook (1) reference is made to the relevant authorities. In

exercising this jurisdiction the Court may consider any conduct of the barrister which is relevant to the

question of whether he is a fit and proper person to continue to be a barrister. In determining this

question immediately recent and more distant behaviour may be taken into account. It is not possible to

draw a line at some point of time and to prevent the Court from looking behind that line. When a

question arises in 1947 as to whether a person is a fit and proper person to continue as a barrister it is

not irrelevant to consider facts which happened in 1934, 1944 or 1946. Such facts may be most

informative as to his character. When a considerable period of time has elapsed past facts should be

considered in the light of the lapse of time, and weight should be given to the subsequent behaviour of

the person concerned. In this case, however, the applicant was not only guilty of a grave criminal

offence in 1934, but in 1944, and again as recently as 1946, he induced two solicitors to give him

certificates of character without disclosing to them that he had been convicted of that criminal offence,

and he presented to the Board certificates so obtained. It would not be reasonable to require a candidate

to disclose to the Board, or even to persons whom he approached with a request for certificates, every

wrong doing of his life. But a conviction for housebreaking is so obviously a relevant matter when

character is under consideration that there can be no room for doubt in the present case as to the duty to

disclose it both to the Board and to the persons from whom he obtained certificates of character.

It was submitted that the appellant, by his good behaviour since 1934, had redeemed himself, and that it

was not unreasonable for him to take the view in 1944 and 1946 that he was then a person of good fame

and character. It may be that he had by that time become a person of good fame, i.e., of good reputation

among those who then knew him. But intrinsic character is a different matter A man may be guilty of

grave wrongdoing and may subsequently become a man of good character. If the appellant had frankly

disclosed to the Board and to the two solicitors the fact of his conviction, that disclosure would have

greatly assisted him in an endeavour to show that he had retrieved his character. But his failure to make

such disclosure in itself, apart from the conviction, excludes any possibility of holding that he was in

1946, or had become in 1947, a man of good character.

Section 10 can scarcely be understood as meaning that these disqualifications, for such they would

otherwise be considered, are to be disregarded. The provision is evidently based on the assumed

condition that there is no disqualifying circumstance and nothing to invalidate the certification by the

Board of its approval. The Board's approval is a judicial or quasi-judicial determination and like every

other ex-parte judicial determination may be recalled if it has been obtained by misrepresentation, non-

disclosure or other invalidating means or is based even on misapprehension or error.

****************


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In my opinion, there is no reason why the Court's power of disbarring should not be exercised upon a

ground that is antecedent to the admission of a barrister or the determination of the Board to approve

him as a fit and proper person.

The argument that, in 1946 the Board had before it all the facts as they are now known and upon full

consideration had decided to approve the appellant as a candidate, the Court would have been required

to accept the Board's decision, does not appear to me to affect the conclusion that the Court's

jurisdiction continues to exist.

*****************

As to the facts, I hope that I have stated them in a way which brings out many considerations

undeniably favourable to the appellant. He has shown industry, perseverance and courage amidst the

most adverse circumstances, and has overcome many disadvantages and obstacles encountered

particularly in his early years. His mental breakdown and even his descent into criminality will evoke

much human sympathy. It is always so upon moral questions, particularly when a man, whose conduct

or actions have been in many respects praiseworthy, mars his life by a crime.

But, though concern for an individual who is overtaken by the consequences of past wrongdoing is a

very proper human feeling, it is no reason whatever for impairing in his interests the standards of a

profession which plays so indispensable a part in the administration of justice.

Housebreaking for the purpose of theft is not a crime the effect of which as a disclosure of character can

be considered equivocal. It is not so easy to imagine explanation, extenuation or reformation

sufficiently convincing or persuasive to satisfy a court that a person guilty of such a crime should take

his place as counsel at the Bar.

But a prerequisite, in any case, would be a complete realization guilty of such a crime should take his

place as counsel at the Bar by the party concerned of his obligation of candour to the court in which he

desired to serve as an agent of justice. The fulfilment of that obligation of candour with its attendant

risks proved too painful for the appellant, and when he applied to the Board for his certificate he

withheld the fact that he had been convicted.

In those circumstances the conclusion that he is not a fit and proper person to be made a member of the

Bar is confirmed.

****************************************************************

Re B

[1981) 2 NSWLR 372

[The celebrated case involving Wendy Bacon, who went on to become a journalist is linked with that of

Livesey. The latter was the barrister who represented the accused over whose bail much of the

professional difficulty arose. The case is an example of a person who wishes to crusade and at the

same time not conform to the established mores due to personal motivation. Miss Bacon was

consistent to her perceived principles and refused to undertake to amend certain ways, if admitted.]

MOFFIT P. The plaintiff, B, a single woman now aged thirty-five, by summons dated 13th April, 1981,

seeks a declaration that she is a fit and proper person to appear and act as a barrister of this Court and an

order that she be admitted as such. The summons coming before a judge of the Common Law Division

of this Court, an order was made, on 30th of April, that the proceedings be removed into this Court.

The plaintiff took the degree of Bachelor of Arts at the University of Melbourne in 1966 being then

aged twenty. In 1968 she entered on a Master of Arts course at the University of New South Wales and

between 1968 and 1971 was there engaged in various studies and tutoring in the fields of sociology and

philosophy. In 1977 she commenced the law course at the same university. At the end of the first year

she received the Butterworth's prize for Criminal Law. She obtained the degree of Bachelor of Laws in


15

July 1979. Obviously there is and never has been any question concerning her academic qualification to

become a barrister.

On 30th April, 1979, she applied to the Barristers Admission Board to be enrolled as a student at law

and was admitted as such on 5th June, 1979, by notification dated 7th June, 1979. On 13th July, 1979,

she applied to the same board for admission as a barrister. In her application she disclosed certain

convictions which she then had~ as she had done when she made the earlier application already referred

to. In response to requests concerning her second application to the board, she supplied further

information by or with letters from her dated 28th October, 7th December, 1979, and 10th December,

1980. There was considerable delay by reason of the plaintiff having been found guilty of contempt of

court in the Magistrate's Court at Lismore on 12th February, 1979, and the appeal there from, resulting

in such conviction being quashed, not being disposed of until 4th November, 1980.

By letter dated 18th December, 1980, she was notified by the Board that her application was rejected.

*****************

It follows from the foregoing and, having regard to the background of this case, that it can and should

be stated that in itself being a radical in a political sense or being what might be regarded by some as an

extremist in views on sex, religion or philosophy provides no bar to admission as a barrister, unless of

course, the attitude of the prospective or practising barrister can be seen to render him not a fit and

proper person because his character, reputation or likely conduct fall short of the standards expected of

a practising barrister. It is an open institution subject only to the requirements of being a fit and proper

person. The court has the responsibility to pass judgment on what standards must be met for a person to

be adjudged fit and proper, but it does so in the context of democratic institutions and a long history

here and elsewhere of the exercise of the power and judicial pronouncements of the question of fitness.

The other matter which should be emphasized is that the question in any case is whether the applicant

for admission is a fit and proper person at the time of admission. A person can only be judged by what

he has done and what he has professed in the past and, properly judged, what he claims of himself when

he makes an application for admission. Some matters in the past may be so incompatible with being a

barrister, not only then, but also later when the application for admission is made, that the court will not

be persuaded that the applicant is a person fit and proper for admission, despite claims made by or about

him to the contrary. Character does not change readily and an applicant for admission or readmission

may have some difficulty in persuading a court that his past character or a past outlook manifested by

conduct or the profession of ideas which were incompatible with being a barrister, have changed.

Some matters in the past may more easily be set to one side, in particular the conduct of young persons,

being conduct not seen in human experience as determinative or necessarily so of ordinary character or

future attitudes or conduct. What a student may do as a student particularly of a student activist type in

the exuberance of development and the exploitation of new freedoms opened to his developing mind,

might call for some scrutiny of a claim to present fitness, but could and mostly will provide little sound

guide to his fitness to be a barrister, when he undertakes the actual responsibility of being such and has

ceased to be a student. Many of the great have been radical in their youth and seen by others to be such.

The Bar and other democratic institutions would be the less, if such people had been or are excluded on

some narrow minded, authoritarian or punitive basis.

****************

It is to misconceive the duty of a barrister to relate it to some subservience to judges or the court, as if to

an elite class The duty is of a different nature. The duty is owed to the public, in that in exchange for the

legal privileges which, the law confers on the barrister or on his relationship with his client, his duty in

the public interest is to conduct himself in relation to those privileges and otherwise in a manner which

will uphold the law and further its pure administration. By reason of the privilege which the law

attaches to communications between barristers and client in relation to litigation, a barrister, by being a

barrister, 15 in the unique situation that he does much of his work in secret protected by his client's

privilege. However his duty to his client is tempered and indeed overridden by his public duty to uphold


16

the law and neither break the law himself nor participate or encourage its breach and in other well-

known ways to conduct himself in a manner which will serve the proper and fair administration of the

law.

*****************

There is no place in these matters for the pursuit of other objectives beyond the proper determination of

the case before the court. Other ends, activist or otherwise, are foreign to the exercise of these privileges

and the performance of a barrister's duties.

Thus judges here and in England have been able to do so because between the court and parties there is

interposed an experienced Bar that can be trusted. For example, matters of the utmost sensitivity and

confidentiality have been able to be disclosed to counsel, in aid of being fairly dealt with, on

undertakings of counsel not to disclose it to anybody, even his own client, except on the further order of

the judge: Church of Scientology of California v Department of Health and Social Security [1979] 1

WLR 72:3; [1979] 3 All ER 97; Kimberley Mineral Holdings Ltd (In Liq) v McEwan [1980] 1 NSWLR

210.

In the Royal Commission into Allegations of Organised Crime in Registered Clubs 1973-1974, only

because of the implicit trust that I was prepared to place in the members of the Bar there appearing was

I able to give them access to material of the utmost confidentiality on undertakings of the type referred

to. My confidence in the Bar does not appear to have been misplaced because despite the continuing

publicity in the years thereafter there has never been the slightest indication that matter which remained

covered by these undertakings were the subject of any “leak”.

Summary of plaintiff’s past history; (a) Plaintiff’s past convictions:

The plaintiff disclosed that she has ten convictions. None of them were offences of dishonesty. They

were severally committed in the course demonstrations or were directed to causes which the plaintiff

considered worthy, although one was rather of a revenge type. The plaintiff conceded to this Court that

in some cases, as is obviously so, she deliberately and knowingly broke the law, but justified this by the

ends being pursued.

*********************

Conclusions regarding bail matter:-

I conclude that clearly the plaintiff has not told this Court the truth, as she knows it, of important and

critical aspects of the bail matter. Not only am I unpersuaded to accept her evidence that the $10,000

was the subject of a genuine loan from VA, but fully conscious of the serious implications (if the

findings, I am convinced that there was no genuine loan to her any part of the $10,000, that she was not

the owner of that money and that she conspired with others to pay over the money of others

representing that it was hers in order to have SS released from jail on bail then well knowing, as she

conceded, that such a payment would at least be improper. Her evidence as to her lack of knowledge as

to the origin of the money at the time she put up the bail money was untrue. because she cannot be

accepted as a truthful witness as to what happened in the bail matter and as no other witnesses have

been called in relation to it eg VA, it is not possible to determine precisely what happened in respect of

the provision of the $10,000. There is suspicion that there was some conspiracy to provide money from

Victoria, some originating from SS himself to be provided as bail so he could abscond, but as the

plaintiff has suppressed what she does know, it is not possible to determine whether there was such a

conspiracy. As the evidence stands there is no evidence the plaintiff was a party to a conspiracy of this

nature, if there was sad conspiracy. There being in fact no loan, it follows that the partial and

unsatisfactory evidence as to the alleged repayments of part of the “loan” was falsely based. It does not

appear whether any of the money allegedly repaid was received or if received was kept by VA, and if

so, whether any payment was really on account of the alleged loan, but whatever be the position, the

plaintiff has concocted evidence of repayment to bolster her claim of a genuine loan, when there was

not such.

******************


17

Conclusions:

I conclude:

(1) The Court has jurisdiction to entertain this application.

(2) The participation by the plaintiff in the bail matter and her untruthful evidence given in this

Court in relation to it render her unfit to be a barrister.

(3) The evidence establishes and it is conceded on behalf of the plaintiff that her past conduct and

her past views were inconsistent with her being a barrister at those times.

(4) Not only has the plaintiff not satisfied me that her prior attitudes have changed but it positively

appears they have not.

(5) The plaintiff has not been shown to be and in fact is not a person fit and proper to be admitted

to practise as a barrister.

**************************************************************************

NEW SOUTH WALES BAR ASSOCIATION V LIVESEY

[1982] 2 NSWLR 231

(I) I add my express agreement with the observations and conclusions there appearing to the effect that

the explanations and evidence of the barrister concerning the bail and Sky Blue matters were unfrank

and false. The barrister had notice that findings of this nature were open to be made, by the addition of

particulars 17 and 18 during the course of the hearing.

It is not necessary in this judgment to detail the reasons which underlie the requirement that to be fit to

be a member of the legal profession a person, be he a barrister or solicitor, should be honest and frank

in his relations with the court and otherwise in his professional conduct and in evidence given by him

before the court, so that the court and other members of the profession can deal with him with

confidence relying on his integrity: Re B [1981] 2 NSWLR 372, at pp 381-383, 395.

The barrister's part in itself in the bail matter amounted to serious professional misconduct. The quality

of his explanations and evidence concerning it added to this misconduct the further dimension above

stated. The seriousness of the Sky Blue matter, in itself, stands in a different category. If a member of

the legal profession acts in a way which is a departure from proper professional standards, so he is

exposed to being found guilty of some professional misconduct, liable perhaps to be dealt with in a

minor way, what was minor may become serious if the barrister or solicitor is unfrank about the matter

or gives a false explanation concerning it. Indeed, where a member of the profession is faced with the

dilemma posed by inquiry concerning some shortcoming on his part, whether it be due to human frailty,

inexperience or some other reason, a response which is honest and frank in this adversity may well

demonstrate that he is a person truly to be relied on. Regrettably, it has been a common experience in

cases before this Court that professional unfitness would not have been established by the initial

misdemeanour, but is revealed by the wrongful conduct which follows in an endeavour to rectify or

conceal the initial wrong or error.

(2) The unfitness found in this case does not turn on whether there was a departure on the part of the

barrister from the rules accepted by the Bar or the Bar Association concerning direct relationships

between a barrister and the client. What happened in this case, as Reynolds JA states, however, does

serve to emphasize the dangers which arise, particularly in criminal cases, from not maintaining the

relationship with clients as a true professional one, but, instead, substituting one which is at a personal

level, in which the member of the profession becomes identified in a personal way with his client and

his cause. When the latter becomes the relationship, there is a real risk that by chance or misguided

choice the lawyer will be led to participate in wrongful conduct of his client. In such cases, the line

between acting professionally and participating in or furthering wrongful conduct may be fine and often

blurred. The rules of the profession, in particular those of the Bar which separate the barrister

professionally from his client, such as those which require the intervention of a solicitor, should not be

seen as designed to establish some elite group, but as directed to ensuring the benefits which flow to


18

clients and the community from legal representation which is independent of extraneous influence and

has the benefits of objective detachment.

*******************

Before going to the matters in issue, I will deal with the submission on behalf of the barrister that

having regard to the decision of the Privy Council in Bhandari v Advocates Committee (1956) 1 WLR

1442; [1956] 3 All ER 742, a high standard of proof is called for in a case such as this, and that a

professional man should not be condemned on a mere balance of probabilities. In my opinion a correct

statement of the law to be applied in the present case is to be found in the following passage in the joint

judgments of Fox, Blackburn and Woodward JJ in Ex parte Attorney-General (Cth); Re a Barrister and

Solicitor(1972) 20 FLR 234, at p 246:

"The question of the standard of proof in disciplinary proceedings against a legal practitioner

has been discussed in Bhandari v. Advocates Committee [1956] I W.L.R. 1442, and in In the

Matter of a Practitioner of the Supreme Court [1960] S.A.S.R. 178, at p.194, and in Re Evatt:

Ex parte New South Wales Bar Association (1967) 67 S.R. (N SW) 236. In the last mentioned

case, the Court of Appeal in a joint judgment said: 'The onus of proof is upon the Association

but is according to the civil onus. Hence proof in these proceedings of misconduct has only to

be made upon a balance of probabilities: Reifek v. McElroy (1965)112 C.L.R. 517. Reference

in the authorities to the clarity of the proof required where so serious a matter as the

misconduct (as here alleged) of a member of the Bar is to be found, is an acknowledgment that

the degree of satisfaction for which the civil standard of proof calls may vary according to the

gravity of the fact to be proved: Briginshaw v Briginshaw (1938) 60 C.L.R. 336, at p.362 per

Dixon J., as he then was; Helton v. Allen (1940) 63 C.L.R. 691; Smith Bros. v. Madden Bros.

[1945] Q.W.N. 33, at p.42 per Dixon J.' (1967) 67 S.R. (N.S.W.) at p.238."

As Dixon J, as he then was, pointed out in Briginshaw v Briginshaw (1938) _ 60 CLR 336, at pp 361,

362, there are only two standards of proof under our law, the civil standard based on a balance of

probabilities and the criminal standard based upon satisfaction beyond reasonable doubt. However this

and other authorities, including the decision of the High Court in Reifek ~ McElroy (1965)112 CLR

517, at pp 521,522, established that "the degree of satisfaction for which the civil standard of proof calls

may vary according to the gravity of the fact to be proved", but need never "attain that degree of

certainty which in indispensable to the support of a conviction upon a criminal charge". I will apply the

civil standard to the present case, bearing in mind, however, the degree of satisfaction necessary to be

attained before concluding that the serious charges against the barrister have been made out.

********************

I give this illustration merely as one example of the different roles of barristers and solicitors, and of the

fact that the law regulates their activities upon an assumption of their different roles. Although in the

circumstances in which he found himself the barrister may have felt it necessary or appropriate that he

play the role of a solicitor, his doing so in a way which would be a breach of the obligations of a

solicitor throws up a need for a closer consideration by courts and by bodies such as the centre of the

circumstances in which this situation arises, and of what should happen when it does arise.

*************************

Going to the particular allegations made by the association, there is no doubt that the barrister conferred

with his client on numerous occasions, generally at a gaol, without the presence of a solicitor or a

solicitor's clerk. In justification for his doing so he has claimed that there were compelling

circumstances, and that if it were relevant to consider the application of the Bar Rules, r 33, he would

come within the terms of the exception expressed in that rule. It is not necessary to traverse all the

occasions complained of by the association nor to consider whether there were compelling

circumstances justifying the barrister's action. I think it is sufficient to say that whilst on some

occasions there may have been compelling circumstances, on most occasions the barrister really did not

think about the matter and acted for Sellers as if he were Sellers' solicitor. He may well have done so

because, being instructed by the Redfern Legal Aid Centre, he made an assumption, probably correct,

that it was unlikely that the centre would have been able to provide the attendance of any solicitor or


19

clerk. However, whatever assumptions he made, it can fairly be said that the barrister acted on many

occasions as if Sellers was his direct client, and the centre had no role to play in his relationship with

Sellers.

The last and probably most important matters to be considered are the allegations concerning the

barrister's involvement in procuring the release of Sellers on bail on 2nd May, 1979, including the

arrangements made in relation to the money used for that bail. There are a number of issues, but the

principal one is whether, as claimed by the barrister, he believed that the $10,000 used for the purposes

of the bail was money that belonged to Ms Wendy Bacon, in the sense that it had been lent to her by Ms

Vivian Altman, or whether, as alleged by the association, the barrister knew that the money did not

belong to Ms Bacon. The general circumstances have been already described, and I will not repeat

them. It is not in issue that the $10,000 included both the sum of $6,000 which the barrister had

collected on Sellers' authority from the Russell Street police station and the sum of $2,500 which he had

obtained from Dr Wainer. It does not appear where the remaining $1,500 came from, although the

barrister's evidence is that Ms Altman was asked to produce the whole $10,000, and did so.

****************

The barrister agrees that he was aware of the illegality of a person using money other than his or hers

when acting as a surety for bail. On my conclusions he was a party to a transaction which to his

knowledge involved Ms Bacon using for bail money which was not hers to procure the release of

Sellers. As it seems to me, the proper conclusion is that the barrister arranged and procured the release

of Sellers on bail despite a knowledge that the enterprise was illegal, and without a concern about that

illegality. This misconduct has been aggravated by the evidence which he gave in this Court, some of

which was false and misleading. His false and misleading evidence includes at least his denial of any

inquiries or discussion about the source of the money for bail and his denial of any knowledge that the

money was not Ms Bacon's.

I feel no small regret that the barrister was led to misconduct himself at the start of what may have been

a promising career. I have no doubt that in the course of his work for the centre he did much work,

voluntarily, for the benefit of those in need of assistance. I have also had regard to the evidence which

has been adduced by the persons who have known him and seen him in practice as a barrister.

Nonetheless, taking everything into account that could be put on his behalf, I have no doubt that the acts

of misconduct which I have found him to have committed call for the relief sought by the association.

His conduct has been of a kind that cannot be tolerated of a member of the Bar, and he has shown that

the court could not have that trust in him which it is entitled to have in any barrister.

****************

This case illustrates the dangers and difficulties that lie in the path of a barrister who ignores the

conventions, traditions, safeguards and self imposed restrictions under which an independent Bar has

functioned for centuries. This young man has no concept of the “noblesse of the robe", the collegiate

pride of a learned profession. Despite his disavowal, it seems to me he has, whilst accepting the status

of a barrister, chosen to work outside the recognized profession with results which have proved

disastrous to him. He has no chambers in the accepted sense, he owns no wig and gown, possesses a

minimal library and has distanced himself from his colleagues in profession. He has allowed himself to

become too close to his criminal clients and lost the detachment which is essential to proper practice.

He has willingly allowed himself to be placed in a position where he becomes a witness in criminal

trials and has sought to intrude himself into situations where persons charged with crime are escorted in

custody by police officers.

***************************************************************************

PROTHONOTARY OF THE SUPREME COURT OF NEW SOUTH WALES v COSTELLO

[1984] 3 NSWLR 201

[In this case the Court of Appeal unanimously made declarations of misconduct but did not strike off the

barrister. The major judgment is that of Priestley JA who quoted passages from Clyne and Ziems as to

the nature of the jurisdiction and then dealt with misconduct and what further considerations the court


20

should apply once a finding of professional misconduct is made. The material below comes from his

judgment. The case highlights the fact that a misconduct finding does not automatically lead to

striking off. However some defaults, such as defalcation are so serious that the tribunal spends little

time in considering fitness to remain on the roll, and in cases such as Clyne and Livesay that they are

so basic as to demonstrate unfitness. ]

Some attention was directed in the submissions before us to the meaning of 'professional misconduct"

by a barrister. Those words or the words "misconduct in a professional respect" have been the subject of

many decisions in contexts largely but not entirely analogous to the present; usually the words have

been employed in a statute regulating a particular profession: eg the Legal Practitioners Act 1898, s 43

(solicitors), the Medical Practitioners Act 1938,s 7(l)(c), and the Dentists Act 1934,s8. The words thus

used have been interpreted as meaning conduct in such breach of the written or unwritten rules of the

profession as would reasonably incur the strong reprobation of professional brethren of good repute and

competence: see Qidwai V Brown [198411 NSWLR 100 at 105. The generality of this formula was

discussed by Sugerman J in Ex parte Meehan: Re Medical Practitioner' Act [1965] NSWR 30 at 35, 36,

where he pointed out the wide range of conduct it can cover. The formula is derived from what was said

by the English Court of Appeal in Allinson v General Medical Council [1894] 1 QB 750 where the

judges recognized that it was not 'an exhaustive definition": Lopes LJ at 763 and see Lord Esher MR at

761 and Davey LJ at 766. The Allinson definition, as I shall call it, is useful in some cases, of which

Qidwai is one amongst many examples. There are some types of conduct where it seems to me it could

be difficult to apply the Allinson definition and it is no doubt some such reservation which led Lopes LJ

to say his definition was not exhaustive. I shall make use of it subsequently in those cases where it can

readily be applied. Its usefulness for present purposes is restricted however, because as the passage

cited above from Clyne's case shows, not all professional misconduct requires removal from the roll.

The considerations just mentioned concerning the concept of professional misconduct make it all the

more necessary in the present case, where the principal claim of the Prothonotary is that Mr Costello's

name should be removed from the roll of barristers, and the court's power to do that is "upon reasonable

cause", the words "professional misconduct" not being mentioned, to recognize that the claim to remove

Mr Costello's name from the roll must be decided by reference to the issue posed by Kitto J at the

commencement of the passage above cited from Ziem’s case, in the light of the considerations special to

barristers discussed in Clyne's case. Some assistance in deciding this issue will be obtained by

considering whether particular instances of Mr Costello's behaviour constitute professional misconduct.

The allegations and findings of fact on them:

The grounds of the Prothonotary's claim were particularized in a document attached to the summons.

They consisted of eleven “incidents", as they were called, in which Mr Costello was concerned from

January 1975 to May 1984. Prior to the substantive hearing of the summons a twelfth incident was

added which occurred in September 1984.

The Prothonotary's case was that all the incidents particularized, except the first, showed a pattern of

deliberate and consistent conduct by Mr Costello calculated to interfere with the proper administration

of justice.

The first step in considering whether this case is made out, is to review each of the incidents, with the

exception of the first, to determine the factual basis upon which Mr Costello's conduct should be

judged.

[His Honour then considered the evidence in relation to the incidents particularized.]

Method of deciding central issue:

In approaching the final question in this case, which is whether, in the words of the Charter of Justice,

the Prothonotary has shown reasonable cause for the removal of Mr Costello's name from the roll of


21

barristers or, in the words of Kitto J in Ziems' case, Mr Costello is shown not to be a fit and proper

person to be a member of the Bar I will consider each incident by reference to the Prothonotary's claims

that what Mr Costello did was -(a) intended to interfere with the proper administration of justice. (b)

professional misconduct, and (c) illustrative of Mr Costello's unfitness to remain a barrister. Before

doing this I should explain what I understand by the phrase "interference with the proper administration

of justice".

To my mind it denotes the doing of something which, if successful, would bring about consequences in

the working of the system of justice in this State by improper means. It is wrongful behaviour whether

or not it is successful. Obvious examples are actual or attempted bribery of someone who has a material

part to play in the decision of litigation. Such persons include any of the lawyers concerned in the case,

jurors, witnesses and even, in cases with a number of parties, some of the parties themselves. Less

obvious examples are where persons material to the decision of litigation are subjected to influences

upon their judgment or, if witnesses, their evidence, quite external to the particular litigation, as for

instance prejudicial media comment. Other examples away from the courtroom are where persons who

may have information or potential evidence relevant to projected proceedings whether they be by way

of litigation or in these days some form of Royal Commission, are subjected to pressures of various

kinds not to make their information or evidence available to relevant authorities.

On the other hand, interruptions and delays to litigation are not of themselves necessarily interference

with the proper administration of justice. Although the practice of parties to criminal litigation of

seeking declarations concerning particular points arising early in the litigation has been deprecated by

higher courts it has never been suggested that the seeking of such declarations interfered with the proper

administration of justice notwithstanding the delay and multiplication of costs often involved. It is

recognized that such applications are within the system of justice and the problems occasioned by them

must be coped with by the system. Similarly, objections to evidence however misguided they may be

are not regarded as interfering with the proper administration of justice, although it is conceivable that a

barrister could so conduct himself as for example by objecting to every question asked throughout a

long trial that the court would have to take steps to prevent the barrister continuing to behave in that

way. The reason would be that the barrister by abusing his privilege of appearance in the court and by

using his right to object to questions for purposes quite opposed to the existence of that right would be

corrupting the course of the hearing. Similarly, conflict in court between opposing barristers or between

the court and one or more barristers is not per se an interference with the proper administration of

justice. The courtroom is a place where conflicts of many kinds are intended to take place and, at the

end of the process, to be decided. In the progress of the case towards decision it is part of rather than

interference with the proper administration of justice that opposing views are expressed. It is inevitable

that expressions of view sometimes become very forceful and, when met with opposition cause heat

between the people putting the differing views forward. Heat leads to sharp words and sometimes rude

exchanges. These things are regrettable and usually regretted by the participants. In the overwhelming

number of cases it never occurs to anyone that these incidents constitute interference with the proper

administration of justice. They are part of it. When matters become extreme the power to punish for

contempt is available. The comparative rarity of the use of this power in contrast to the innumerable

incidents of heated behaviour in courtrooms shows how fully accepted it is that conflict in court is part

of the ordinary routine of the proper administration of justice. Whether behaviour in court goes so far

beyond a tolerable degree of heat and conflict as to justify the description of interference with the

proper administration of justice will be a question of fact in each case.

[His Honour then evaluated each of the matters relevant to the central issue finding that there

were four incidents of professional misconduct two of which had a tendency to interfere with

the administration of justice and at least five other incidents of professional misconduct of a

minor nature.]

Examination of the incidents brought before us by the prothonotary has resulted in intense scrutiny of

the undesirable aspects of Mr Costello's behaviour. This can give an incomplete picture of a barrister

who has been in full time practice since 1972. No evidence was before us of anything raising doubts

about his fitness during the five years preceding February 1983, although evidence put before us in his

case suggests that he was busy in the courts during that time.


22

There are positive aspects to his character which must be taken into account in evaluating his overall

fitness to remain on the roll of barristers. First amongst these is the impression I have obtained from the

evidence before the court and the way Mr Costello conducted himself in the witness box that, as a

barrister, he is honest. The Prothonotary did not suggest that any of the incidents upon which he relied

showed dishonesty or sharp dealing by Mr Costello. It was submitted on the Prothonotary's behalf that

some of his answers in cross examination showed a deliberate effort to mislead the court. I have already

indicated that I did not get that impression. Although Kitto J made the point in Ziems' case that honesty

is not enough. to my mind it goes a long way. Nor was it suggested that Mr Costello was ever guilty of

not trying his hardest for his clients. In my opinion some of his characteristics are likely to lead him to

forget from time to time what his clients' best interests are but there is no suggestion that he has ever

deliberately attempted to prefer his own interest to that of his clients. His problem is that his

temperament produces great zeal for his clients and a hyper-readiness to see and struggle against the

possibility of unfairness to them. I regard these matters as being largely in his favour. However I do not

go so far as his counsel, who sought, in this respect, to draw comfort from Mr Barry Goldwater's

epigram that "extremism in the defence of liberty is no vice". This is simply an attractive way of saying

that the end justifies the means.

Whatever may be the case in regard to the complex notion of liberty it is quite certain that no client's

cause justifies any means whatsoever being used to support it.

Conclusion:

The question is whether the Prothonotary has shown that Mr Costello is not a fit and proper person to be

a member of the Bar. The evidence before us shows he was responsible for two potentially serious

interferences with the proper administration of justice and a number of instances of professional

misconduct. I am not persuaded that this evidence and these instances when balanced with the desirable

aspects of his character show that he is unfit. The frailties he has displayed which I might more

appropriately call excessive and hubristic strengths are not so marked as to demonstrate that protection

of the public interest and protection of the proper workings of the administration of justice require his

removal from the roll. Kitto J in Ziems' case spoke of the daily cooperation between Bench and Bar

which the satisfactory working of the courts demands. As I have tried to indicate in speaking earlier of

what is meant by the proper administration of justice the daily cooperation of which Kitto J was

speaking was cooperation in the management and resolution of conflict and the fact that conflict

sometimes flares into clashes of personality between those taking part in the working of the courts is,

within limits, part of the daily cooperation. The difficulty lies in defining the limits. Although I think

that Mr Costello has at times crossed those limits I do not think the way in which he has done so, after

all the evidence before us is taken into account, shows unfitness.

The exercise of the court's jurisdiction to remove a barrister's name from the roll has been held by the

High Court to be "entirely protective" (Evatt's case at 183), that is, protective of the public interest and

of the proper administration of justice. Although in my view no order should be made for the removal

of Mr Costello's name from the roll of barristers I think the result of these proceedings will nevertheless

be appropriately protective. To the extent that I have made adverse findings concerning Mr Costello's

conduct, they bear upon his fitness to be a barrister. Because that improper conduct is and will remain

relevant to the general question of fitness it will be available to be taken into consideration in any

further evaluation of his fitness to remain on the roll should that question again come before the court.

Further incidents of the kind about which adverse findings have been made which in themselves, like

the present ones, would not be enough to warrant a conclusion of unfitness could well when taken into

account with those that have been considered in the present proceedings lead to an opposite conclusion.

I hope that appreciation of this fact will protect the public, his fellow practitioners and Mr Costello

himself from the recurrence of incidents of the kind about which I have made adverse findings.

***************************************************************************


23

ZIEMS v THE PROTHONOTARY OF THE SUPREME COURT OF NEW SOUTH WALES

(1957) 97 CLR 279

DIXON C J. In dealing with the question whether a man should remain on the roll of barristers the

special if not singular position of counsel should be borne steadily in mind. If counsel is adequately to

perform his functions and serve the interests of his clients, he should be able to command the

confidence and respect of the court, of his fellow counsel and of his professional and lay clients. When

a barrister is justly convicted of a serious crime and imprisoned the law has pronounced a judgment

upon him which must ordinarily mean the loss by him of the standing before the court and the public

which, as it seems to me, should belong to those to whom are entrusted the privileges, duties and

responsibilities of an advocate. There may be convictions for a crime of which this is not true, but I

cannot think that the present is one of them.

The history of the Bar, both in Australia and in England, may disclose instances of men who have fallen

very low indeed and yet, having escaped disbarment, have afterwards attained recognition if not

eminence. In no such case, however, was a court called upon to pronounce upon the disqualifying

effect of the conduct that had been pursued by the man who afterward succeeded, and it is equally true

that, on the other hand, for a like reason men have escaped disbarment who have never ceased to be a

source of anxiety and worse to other members of the Bar.

The duty of a court cannot be affected by either description of consideration just as it cannot be affected

by a consideration of the hardness of the case of the man who has been convicted. The jurisdiction the

court exercises has nothing to do with punishment. The purpose of the power to remove from the roll of

barristers is simply to maintain a proper standard, and that is a necessarily high standard, for the Bar is a

body exercising a unique but indispensable function in the administration of justice.

******************

FULLAGER J. There is another point (though I attach much less importance to it) on which I find

myself unable to agree without qualification with the view of the Supreme Court. It is said that: 'The

personal and the professional sides of his life cannot be dissociated." If this is read literally, it goes, in

my opinion, much too far. Personal misconduct, as distinct from professional misconduct, may no doubt

be a ground for disbarring, because it may show that the person guilty of it is not a fit and proper person

to practise as a barrister : see, e.g. In re Davis (1). But the whole approach of a court to a case of

personal misconduct must surely be very different from its approach to a case of professional

misconduct. Generally speaking, the latter must have a much more direct bearing on the question of a

man's fitness to practise than the former.

*******************

KITTO J. From the order so made this appeal is brought. The issue is whether the appellant is shown

not to be a fit and proper person to be a member of the Bar of New South Wales. It is not capable of

more precise statement. The answer must depend upon one's conception of the minimum standards

demanded by a due recognition of the peculiar position and functions of a barrister in a system which

treats the Bar as in fact, whether or not it is also in law, a separate and distinct branch of the legal

profession. It has been said before, and in this case the Chief Justice of the Supreme Court has said

again, that the Bar is no ordinary profession or occupation. These are not empty words, nor is it their

purpose to express or encourage professional pretensions. They should be understood as a reminder

that a barrister is more than his client's confidant, adviser and advocate, and must therefore possess

more than honesty, learning and forensic ability. He is, by virtue of a long tradition, in a relationship of

intimate collaboration with the judges, as well as with his fellow members of the Bar, in the high task of

endeavouring to make successful the service of the law to the community. That is a delicate

relationship, and it carries exceptional privileges and exceptional obligations. If a barrister is found to

be, for any reason, an unsuitable person to share in the enjoyment of those privileges and in the

effective discharge of those responsibilities, he is not a fit and proper person to remain at the Bar.

Yet 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


24

pursue them. It is not difficult to see in some forms of conduct, or in convictions of some kinds of

offences, instant demonstration of unfitness for the Bar. Conduct may show a defect of character

incompatible with membership of a self respecting profession; or, short of that, it may show unfitness to

be joined with the Bench and the Bar in the daily cooperation which the satisfactory working of the

courts demands. A conviction may of its own force carry such a stigma that judges and members of the

profession may be expected to find it too much for their self respect to share with the person convicted

the kind and degree of association which membership of the Bar entails. But it will be generally agreed

that there are many kinds of conduct deserving of disapproval, and many kinds of convictions of

breaches of the law, which do not spell unfitness for the Bar; and to draw the dividing line is by no

means always an easy task.

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25

3. An advocate’s duty to the court

An advocate's duty to the court: General Riley states that a solicitor's paramount duty is -

"as an officer of the court, to avoid any action which might mislead the court is a primary limitation on the duty owed to the client."

Lord Reid in Rondel v Worsley stated that an advocate's duty -

"..to his client is to fearlessly to raise every issue, advance every argument, and ask every question, however, distasteful, which he thinks will help his client's case. But as an officer of the court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to conflict with his client's wishes or what the client thinks are his personal interests."

As stated, in Clyne and Rondel, counsel must not -

mislead the court;

cast aspersions on the other party(ies) or witness(es), where no valid evidence provides cause to do so; and

withhold information, authorities or documents that may prejudice his client's case, when he/she is required by law to produce them.

These principles were exemplary of the basic obligation, and further confirmed in Kennedy, where the High Court stated that counsel may not interfere with the evidence of a witness. As well, in Clyne, it was also affirmed that the protections which counsel enjoys must not provide a shield from which to abuse, attack or knowingly do harm by the introduction of irrelevant matters into court proceedings.

3.1 Why do you believe that the court and the regulatory bodies need to place limitations upon what counsel may do within court?

The New South Wales Bar Association, Rules 21 -31 concern themselves with a barrister's duty to the court, with particular emphasis on frankness within court. Rule 23 of the Model Rules, including Rules 16A - 72A, made under s57A of the Legal Profession Act 1987, concern themselves with advocacy issues for all legal practitioners, whether barrister, solicitors or solicitor advocates, when acting as an advocate in court. In considerable detail, each of these provisions clearly articulates the duties that an advocate owes to the court and its functions.

3.2 Why should an advocate's duty to the court take precedence over his/her duty to the client?

Honesty and candour In Kotowicz, a solicitor with a New South Wales practicing certificate was struck off the roll of solicitors for misappropriation of client funds. He then worked as a real estate agent and taught real property law part time. He applied for readmission, where the Law Society led evidence that he still showed little remorse for his past misdeeds and that the evidence for that was that he had been less than frank on his application for a real estate license. The Supreme Court rejected this evidence, holding that the


26

applicant disclosed all that was required by the forms provided by the Institute and that the failure to provide further information did not evidence a lack of candour or honesty. It also indicated that it was important that a solicitor be given the right to continue to practice in the profession for which he had made considerable commitment.

3.3 Do you agree with the Court's view in Kotowicz? 3.4 The California Bar Association and the American Bar Association are considering the introduction of lifetime bans. Where a legal practitioner breaches fundamental obligations, such as those relating to client trust and the fiduciary role should that be grounds for a lifetime ban? Why or why not? 3.5 In Meek v Fleming the court took a stern view about counsel's decision not to be forthcoming on all of the facts relating to his client. Do you think the court was right in doing so? 10.1 In Tombling v Universal Bulb Co, counsel chose not to disclose that a key witness in a

case was in fact serving a prison term at the time of the court case. On reading the case, do you think this was strategy or an omission?

3.7 Are there any circumstances in which strategic objectives relating to the running of a case should take precedence over an advocate's duty to the court in terms of maintaining appropriate candour and honesty?

Courtesy The Model Rules state that -

"A practitioner, in all of the practitioner's dealings with other practitioners must take all reasonable case to maintain the integrity and reputation of the legal profession by ensuring that the practitioner's communications are courteous and that the practitioner avoids offensive or provocative language."

Rudeness and discourtesy in court can amount to contempt of court. Kirby ACJ in Garrard v Email Furniture Pty Ltd says -

"Discourtesy is not limited to the tone of correspondence or the vigour of its language. Those members of the legal profession who seek to win a momentary advantage for their clients without observing the usual and proper courtesies invite correction by the court and the disapprobation of their colleagues."

In Lewis v His Honour Judge Ogden, counsel for one of the accused in a criminal trial was charged with contempt, for remarks made about the Judge's summing up and directions to the jury. On appeal the Court indicated that discourtesy alone could not give rise to a charge of contempt, though the Judge may have considered that the remarks impacted upon the conduct of the proceedings and the administration of justice. In its judgment the court said that mere discourtesy falls well short of insulting conduct, let alone wilfully insulting conduct which is the hallmark of contempt. The contempt power is exercised to vindicate the integrity of the court and of its proceedings. .... rarely, if ever, exercised to vindicate the personal dignity of a judge.

3.8 Do you think the outcome was correct in this instance? Does strategy or the vigorous defense of a client make it acceptable for a legal practitioner to insult or act discourteously to the bench?

Not to frustrate court process Rule 35 of the New South Wales Barrister's Rules state -


27

"A barrister must, when exercising the forensic judgments called for throughout the case, take care to ensure that decisions by the barrister or on the barrister's advice to invoke the coercive powers of a court or to make allegations or suggestions under privilege against any person: (a) are reasonably justified by the material already available to the barrister; (b) are appropriate for the robust advancement of the client's case on its merits; (c) are not made principally in order to harass or embarrass the person; and (d) are not made principally in order to gain some collateral advantage for the client or the

barrister or the instructing solicitor out of court." The effect of this rule was demonstrated in Clyne; and in Ex parte Bellanto: re Prior a barrister was cited for contempt as a result of attempting to create the grounds for a mistrial, thorough inappropriate court behaviour. In Kennedy a solicitor attempted to frustrate the court process by his attempt to influence a witness in a personal injury matter. In Mechanical and General Inventions involving a patent and agreement for the use of a technical innovation, the English Court of Appeal had cause to remark upon the length and nature of examination and cross-examination of the parties by counsel. Specifically -

I desire to make serious comment - that is the cross-examination to which the leading actors on either side were subjected. Mr L's examination occupied 80 pages (of transcript); his cross-examination occupied 265. The examination of Sir H occupied 39 pages, his cross-examination 148. .... Cross-examination is a powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of his story. It is entrusted to the hands of counsel in the confidence that it will be used with discretion; and with due regard to the assistance to be rendered by it to the Court."

3.9 What do the above cases say about tactics in the conduct of a case? 3.10 Do you think that there are grounds for limiting the tactics which counsel can employ to make his/her case?

Case extracts:

***************************************************************************

RONDEL V WORSLEY [1967] 3 All ER 993

[Lord Reid’s judgment contains the classic statement concerning the paramount duty to the court.

‘Every counsel has a duty to his client....’ and this should be committed to memory. It also clarified

the question of counsel’s immunity from suit. The passages included in the excerpts relate to quotes

from Swinfen v Lord Chelmsford and R v O’Connor and these have not been separately extracted. Note

that in late 2000 the House of Lords revoked immunity for Counsel in that jurisdiction]

LORD REID: My Lords, in 1959 the appellant was charged at the Central Criminal Court with causing

grievous bodily harm to one Manning. He was not given legal aid but after the case had proceeded for

some time be was informed that he could have a "dock brief". He chose the respondent to be his

counsel and, in accordance with his duty as a barrister, the respondent agreed to act for him. During an

adjournment he gave to the respondent his account of the affair. The respondent then cross examined

the Crown witnesses and called the appellant and another witness. The appellant was convicted and it

is plain that he had no real defence. But he was much aggrieved by evidence that he had used a knife;

he wanted to establish that he had inflicted Manning's injuries with his hands alone, or by biting, and

apparently the respondent did not ask all the questions or lead all the evidence that he had suggested.


28

In February, 1965, the appellant raised the present action. His original statement of claim, apparently

prepared by himself, was barely intelligible. In April the respondent sought an order that the statement

of claim be struck out as disclosing no cause of action and also as being irregular. In May the master

ordered that the statement of claim be struck out and the action dismissed. The appellant appealed and

BROWNE, 3., asked the Official Solicitor to instruct counsel to act as amici curiae.

In November, 1965, LAWTON, (1) heard argument for five days on the question whether the statement

of claim disclosed any cause of action and, in a learned and elaborate judgment delivered on Dec. 21, he

held that it did not, because a barrister cannot be sued by his client for negligence or lack of skill in

presenting his client's case in court. I shall not deal with attempts to improve the statement of claim by

amendment; and I shall not deal with the facts beyond saying that possibly a case could be made out to

the effect that the respondent made some error of judgment I am not in a position to express an opinion

about that but there is nothing in the facts before us to indicate any professional negligence or lack of

skill on his part, and nothing to indicate that the appellant would have been any better off if the

respondent had acted differently. Leave to appeal was given and the Court of Appeal (2) LORD

DENNING, M.R., and DANCKWERTS and SALMON, L.JJ.) on Oct. 20, 1966, dismissed the appeal.

The argument before your lordships has been directed to the general question of barristers' liability and

has ranged widely. For the appellant it was said that all other professional men, including solicitors, are

liable to be sued for damages if loss is caused to their clients by their lack of professional skill or by

their failure to exercise due care; so why should not barristers be under the same liability? For the

respondent it has been shown that for at least two hundred years no judge or text writer has questioned

the fact that barristers cannot be so sued, and a variety of reasons have been adduced why the present

position should continue.

I do not propose to examine the numerous authorities. It is, I think, clear that the existing rule was

based on considerations of public policy; but public policy is not immutable and doubts appear to have

arisen in many quarters whether that rule is justifiable in present day conditions in this country. So it

appears to me to be propel' to reexamine the whole matter. In doing so I shall confine my attention to

conditions in England and Scotland, between 'which there appears to me to be no relevant difference. I

do not know enough about conditions ill any other country to express any opinion as to what public

policy may there require.

There is no doubt about the position and duties of a barrister or advocate appearing in court on behalf of

a client. It has long been recognised that no counsel is entitled to refuse to act in a sphere in which he

practices, arid on being tendered a proper fee, for any person however unpopular or even offensive he

or his opinions may be, and it is essential that that duty must continue: justice cannot be done and

certainly cannot be seen to be done otherwise. If counsel is bound to act for such a person, no

reasonable man could think the less of any counsel because of his association with such a client, but, if

counsel could pick and choose, his reputation might suffer if he chose to act for such a client, and the

client might have great difficulty in obtaining proper legal assistance.

Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask

every question, however distasteful, which he thinks will help his client's case. As an officer of the

court concerned in the administration of justice, he has an overriding duty to the court, to the standards

of his profession, and to the public, which may and often does lead to a conflict with his client's wishes

or with what the client thinks are his personal interests. Counsel must not mislead the court, he must not

lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis

in the information in his possession, he must not withhold authorities or documents which may tell

against his clients but which the law or the standards of his profession require him to produce. By so

acting he may well incur the displeasure or worse of his client so that if the case is lost, his client would

or might seek legal redress if that were open to him.

Is it in the public interest that barristers and advocates should be protected against such actions? Like

so many questions which raise the public interest, a decision one way will cause hardships to

individuals while a decision the other way will involve disadvantage to the public interest. On the one


29

hand, if the existing rule of immunity continues there will be cases, rare though they may be, where a

client who has suffered loss through the negligence of his counsel will be deprived of a remedy. So the

issue appears to me to be whether the abolition of the rule would probably he attended by such

disadvantage to the public interest as to make its retention clearly justifiable. I would not expect any

counsel to be influenced by the possibility of an action being raised against him to such an extent that

he would knowingly depart from his duty to the court or to his profession; but although the line between

proper and improper conduct may ho easy to state in general terms, it is by no means easy to draw in

many borderline cases. At present it can be said with confidence in this country that where there is any

doubt the vast majority of counsel put their public duty before the apparent interests of their clients.

Otherwise there would not be that implicit trust between the Bench and the Bar which does so much to

promote the smooth and speedy conduct of the administration of justice. There may be other countries

where conditions are different and there public policy may point in a different direction; but here it

would be a grave and dangerous step to make any change which would imperil in any way the

confidence which every court rightly puts in all counsel who appear before it.

There is another factor which I fear might operate in a much greater number of cases. Every counsel in

practice knows that daily he is faced with the question whether in his client's interest he should raise a

new issue, put another witness in the box, or ask further questions of the witness whom he is examining

or cross examining. That is seldom an easy question but I think that most experienced counsel would

agree that the golden rule is when in doubt stop. I Far mere cases have been lost by going on too long

than by stopping too soon. But the client does not know that. To him brevity may indicate incompetence

or negligence and sometimes stopping too soon is an error of judgment. So I think it not at all

improbable that the possibility of being sued for negligence would at least subconsciously lead some

counsel to undue prolixity, which would not only be harmful to the client but against the public interest

in prolonging trials. Many experienced lawyers already think that the lengthening of trials is not leading

to any closer approximation to ideal justice.

*******************

The main reasons on which I have based my opinion relate to the position of counsel while engaged in

litigation, when his public duty and his duty to his client may conflict. But there are many kinds of work

undertaken by counsel where no such conflict would emerge, and there I see little reason why the

liability of counsel should be different from that of members of any other profession who give their

professional advice and services to their clients. The members of every profession are bound to act

honourably and in accordance with the recognised standards of their profession; but that does not, in my

view, give rise to any such conflict of duties as can confront counsel while engaged in litigation.

It was argued that, if counsel were to have immunity with regard to one part of their work but not with

regard to other parts, there would be great difficulty in distinguishing between one case and another or

determining where the immunity is to stop. I do not think so. The same public duty applies when

drawing pleadings or conducting subsequent stages in a case as applies to counsel's conduct during the

trial; and there will be cases where the same will apply at a stage when litigation is impending. But

there are extensive fields of advisory work or work in drafting or revising documents where that does

not apply.

Leave to appeal having been given by this House, application was made for leave to serve the re-

amended statement of claim under R.S.C., Ord. 20, r. 5. On behalf of the appellant it was, however,

suggested that if the appellant's arguments prevailed the case should be referred back for a decision

whether leave should be given to serve the re-amended statement of claim.

It is in this somewhat uninspiring setting that a question is presented for decision that for long has been

generally regarded as well settled. It must be decided without regard to the merits or demerits or the

tensions of any particular case. As illustrative, however, of a type of possible action which calls for

examination the complaints of the appellant in this case as they have emerged in the draft of the

potential re-amended statement of claim merit examination. The substance of them was that the

respondent failed to put certain questions to witnesses or to call, or to take the necessary steps to call,

certain witnesses. There had never been any doubt that it was the appellant who caused the very severe


30

injury to Manning's hand or that it was he who bit off the lobe of Manning's ear. The appellant's case

was that he had only acted in self defence. He now complains that after he had instructed the respondent

as to the facts which he said supported his case the respondent (a) failed in examining or re-examining a

defence witness to bring out that Manning had associates or friends at the scene of the incident who

could have helped him in a fight; (b) failed to cross examine Manning or a doctor who was a

prosecution witness as to the impossibility of the wound having been inflicted by a knife or similar

weapon; (c) failed to elicit evidence from the witnesses at the trial or to call or get witnesses to prove

that the appellant (as rent collector and caretaker for Rachman) had authority to go to the house in

question. The complaint of the appellant was that as a result of these omissions he was wrongly

convicted.

In the cases to which I have referred the legal basis for the opinions so unhesitatingly expressed is not

fully analysed or expounded. The remarkable case of Swinfen v. Lord Chelmsford (53) was

considerably concerned with the question of the authority of counsel to settle an action though the

whole question of the legal liability of counsel came under consideration. In previous proceedings the

plaintiff had wished to establish that an estate had by will been devised to her. Her then counsel (the

defendant in Swinfen v Lord Chelmsford) (53) both to her dismay and, as she asserted, also contrary to

her express instructions, settled the case on the basis that the estate went to the heir-at-law subject to his

paying an annuity (secured on the estate) to her (the plaintiff) for her life. She firmly refused to

acknowledge the settlement. She successfully resisted all the legal proceedings by which the heir-at-law

sought to enforce the settlement. When he applied for specific performance she succeeded in

establishing that the settlement had been without her authority. The issue which she had raised in her

original proceedings later came on for trial again: she was successful in her claim that the estate had by

will been devised to her. The various legal proceedings which by her pertinacity gave her complete

victory did, however, involve her in trouble and expense. Accordingly, she sued her counsel. The ease

was tried with a jury. Her declaration alleged that the defendant (who had been her counsel) had settled

her case (by withdrawing a juror) wrongfully and fraudulently and without her authority and against her

will and contrary to her instructions and, accordingly, that he had failed and neglected to perform his

duty. One plea of the defendant was that he did not know that he had no authority to settle and that he

had settled in good faith and without fraud.

Another plea was that there had been no restriction on the exercise of his discretion and that he had

acted without fraud or negligence and in good faith and in exercise of the best of his judgment and in

the honest exercise of his discretion.

In his direction to the jury SIR FREDERIC POLLOCK, C.B., said (54), that all that the law requires

from a counsel in a cause is that he shall discharge his duty to the best of his ability and that the

defendant was not responsible if he intended to act honestly and for the benefit of his client. On behalf

of the plaintiff, SIR FREDERICK POLLOCK, C.B. was asked to leave the question to the jury whether

the defendant entered into the compromise wilfully and without the authority of his client but the

learned judge thought that that would not constitute a cause of action. After the jury had found for the

defendant on all the issues a rule nisi for a new trial on the ground of misdirection was granted and was

argued before the Court of Exchequer. The rule was discharged. The court held that an advocate at the

English Bar, accepting a brief in the usual way, undertakes a duty but does not enter into any contract or

promise either express or implied: he takes on himself an office or duty in the proper discharge of

which not merely the client but the court in which the duty is to be performed, and the public at large,

have an interest. The court held that the conduct and control of a cause are necessarily left to counsel.

They added (55):

“If a party desires to retain the power of directing counsel how the suit shall be conducted, he

must agree with some counsel willing so to bind himself. A counsel is not subject to an action for

calling or not calling a particular witness, or for putting or omitting to put a particular question or

for honestly taking a view of the case which may turn out to be quite erroneous. If he were so

liable counsel would perform their duties under the peril of an action by every disappointed and

angry client."


31

They also held (56) that "no action will lie against counsel for any act honestly done in the conduct or

management of the cause ...”

It is to be observed that the court accepted that counsel owed a duty: the duty was one which was owed

to the client and also to the court and also to the public. The court might have been content to say that as

counsel is vested with a discretion as to how he will conduct a case he will have a defence when sued if

he asserts that he exercised his discretion honestly; but the court went further and laid it down that for

any act honestly done in the conduct and management of a cause no action will lie against counsel. The

basis of this would seem to be that as counsel owes a duty to the public and to the court as well as to his

client, the public interest and the administration of justice require that he should not be subject to an

action in respect of such complaints as (55):-

"calling or not calling a particular witness, or for putting or omitting to put a particular question,

or for honestly taking a view of the case which may turn out to be quite erroneous"

The question now arises whether this view is correct and whether today justification for it continues to

exist.

The statement of the court in Swinfen v Lord Chelmsford (57) that an advocate takes on himself a duty

in the discharge of which the client and also the court and also the public had an interest was a

statement made in reference to litigation. The context in which the words which I have quoted were

spoken was that of" the conduct or management of the cause". The words were spoken in reference to

an advocate at the English bar because only such an advocate could have conducted the case in the

court in which the first cause of Swinfen v Swinfen (58) was tried. The reasoning of the decision, if it is

correct, would seem to me to apply to the advocate in litigation whether he be either a barrister or a

solicitor.

Although it was not argued on behalf of the appellant in this case that a barrister enters into a

contractual arrangement, I see no reason to doubt that when retained a barrister owes a duty to exercise

due and reasonable care and skill. In this respect he is, in my opinion, in the same position as the

members of other professions. The duty is owed, quite irrespective of contract, and quite irrespective of

the receipt of any reward or honorarium. It is owed when the work is undertaken which he is instructed

to do. Accordingly, in my view, there cannot be, and indeed there ought not to be, any question of any

one profession being in a special position, save, if at all, in such limited way as the public interest

demands.

I pass, therefore, to consider whether so far as concerns what is said of done in the conduct or

management of a case in court the public interest requires that an advocate should have immunity. In

the first place, it will be helpful to examine the nature of the duty which is owed by an advocate. I think

that it must be true to say, as was said in Swinfen v Lord Chelmsford (74). that the duty under taken by

an advocate is one in which the client, the court and the public have an interest because the due and

proper and orderly administration of justice is a matter of vital public concern. The advocate has a duty

to assist in ensuring that the administration of justice is not distorted or thwarted by dishonest or

disreputable practices. To a certain extent every advocate is an amicus curiae. In the Irish case of R. v

O'Connell (75) it was said by CRAMPTON, J. (76), that though an advocate for an individual is

retained and remunerated for his services yet he has a prior and perpetual retainer on behalf of truth and

justice His duty to the client is to exercise a reasonable degree of care and skill. In the nature of things

that, in turn, involves that he must make decisions which call for the exercise of personal judgment. He

must in the honest exercise of his discretion decide what questions to put and what witnesses to call. It

would seem to result from this that in most cases it would be an effective answer to an allegation of

negligence to say that the course that had been followed in litigation "'as that which the advocate in the

honest exercise of his discretion had deemed it advisable to follow. It is the discretion of the chosen

advocate on which the client must rely. When a ease is concluded it can often happen that in retrospect

there are cogitations as to whether if this or that additional question bad been put or if this or that

question had not been put or if some further witness had been called the result might have been

different. In many cases it is probable that the result would not have been different. In some cases it


32

might only be those who judicially determined the first case (the judge or members of a jury) who could

really supply the answer. If in retrospect it were thought that had a case been differently conducted the

result would possibly or probably have been different, it might be that the view would be held that the

advocate had honestly exercised his discretion but had been guilty of certain errors of judgment not

amounting to negligence. The duty of the advocate is, however, not merely to act honestly: his duty

also is to exercise a reasonable degree of care and skill.

******************

It becomes, therefore, a matter of balancing the public advantages and the public disadvantages which

are the result of an immunity of the advocate from a suit alleging negligence in the conduct and

management of a court Case In my view, the public advantages outweigh the disadvantages. They do so

overwhelmingly in respect of criminal cases and considerably so in respect of civil cases. It has always

been the policy of the law to ensure that trials are conducted without avoidable strains and tensions of

alarm and fear. If a witness, whose testimony involves uttering words defamatory of others, was under

ally fear of having an action brought against him on account of what he said in court, the due

administration of justice would be impossible. In order that the protection of a witness may be complete

and so that it is not circumvented by the making of an allegation that the testimony was false or was

perjured or was given maliciously, the immunity from suit is absolute. No action lies in respect of

evidence given by witnesses in the course of judicial proceedings, however false or malicious it may be,

though naturally everyone is bound by the criminal law and if perjury can be proved a criminal

prosecution may result. The immunity from civil suit is founded on reasons of public policy and, as was

pointed out in Marrinan v Vibart (78), the protection which the law affords to witnesses is not given as

a benefit for them but is given for a higher interest, i.e., that of the advancement of public justice. So

also the immunity from civil suit in respect of words spoken in court applies to the parties to a case: it

applies to judges: it applies to advocates. In Munster v Lamb (79) the plaintiff brought an action for

defamation against a solicitor in respect of words he had spoken as an advocate. The action failed and

an appeal from the judgment of MATHEW, J. (80) was dismissed. In his judgment MATHEW, J., said

(81):

"It may be inconvenient to individuals that advocates should be at liberty to abuse their

privilege of free speech subject only to animadversion or punishment from the presiding judge.

But it would be a far greater inconvenience to suitors if advocates were embarrassed or

enfeebled in endeavouring to perform their duty by the fear of subsequent litigation."

In his judgment in the Court of Appeal SIR BALIOL BRETT, M.R., said (82):

“A counsel's position is one of the utmost difficulty. He is not to speak of that which he knows;

he is not called upon to consider, whether the facts with which he is dealing are true or false.

What he has to do, is to argue as best he can, without degrading himself, in order to maintain

the proposition which will carry with it either the protection or the remedy which he desires for

his client. If amidst the difficulties of his position he were to be called upon during the heat of

his argument to consider whether what he says is true or false, whether what he says is relevant

or irrelevant, he would have his mind so embarrassed that he could not do the duty which he is

called upon to perform. For, more than a judge, infinitely more than a witness, he wants

protection on the ground of benefit to the public."

*******************

In the nature of things it would seem to be undesirable if, when the litigation is over and appeals have

been heard there can be an inquest on it all, or a further reopening of it all, in the form of an action

against the advocate alleging that it was his fault that the case had not been differently decided. The

successful party in the litigation would not be involved in or be a party to the later action, yet in that

action the assertion would be made that he had wrongly gained the victory. If a petitioner for divorce

failed to obtain a decree and in an action against his advocate claimed that he would have succeeded but

for some fault on the advocate's part, there might be enquiry as to whether the respondent to the petition

had been guilty of a matrimonial offence: the enquiry would be taking place in proceedings to which the

respondent was not a party. Such procedure could not be desirable or could not on balance be in the


33

public interest. Though the very nature of advocacy is such that there would be manifest difficulties in

proving that but for some faulty conduct or management of a case in court there would have been a

different result, it is not this circumstance which warrants an immunity from suit. It is warranted and

only warranted by the various considerations of the public interest to which I have referred.

I would dismiss the appeal.

********************

In 1876 in Scotland the Court of Session (Batchelor v Ferguson & Macker (101)) once again held that a

claim for negligence would not lie against an advocate. The Lord President (Loan INGLIS) there said

(102):

“An advocate in undertaking the conduct of a cause in this court enters into no contract with

his client, but takes on himself an office in the performance of which he owes a duty, not to his

client only, but also to the court, to the members of his own profession, and to the public. From

this it follows that he is not at liberty to decline, except in very special circumstances, to act for

any litigant who applies for his advice and aid, and that he is bound in any cause that Comes

into court to take the retainer of the party who first applies to him. It follows, also, that he

cannot demand or recover by action any remuneration for his services, though in practice he

receives honoraria in consideration of these services. Another result is that while the client

may get rid of his counsel whenever he pleases, and employ another, it is by no means easy for

a counsel to get rid of his client. On the other hand the nature of the advocate's office makes it

clear that in the performance of his duty he must be entirely independent, and act according to

his own discretion and judgment in the conduct of the cause for his client. His legal right is to

conduct the cause without any regard to the wishes of his client so long as his mandate is

unrecalled and what he does bona fide according to his own judgment will bind his client, and

will not expose him to any action for what he has done, even if the client's interests are thereby

prejudiced. These legal powers of counsel are seldom, if ever, exercised to the full extent,

because counsel are restrained by consideration of propriety and expediency from doing so.

But in such a case as this, it is necessary to have in view what is the full extent of their legal

powers."

Thus the Courts have clearly accepted the principle that owing to the particular part which he plays in

the judicial process counsel cannot be sued for negligence in his conduct of a case. There were a few

dicta in earlier times which appear to indicate a contrary view. These were all collected with great

industry by Mr. Kennedy in 1863 in Kennedy v. Broun (103) which was concerned with counsel's right

to sue for fees; but as ERLE, C.J., pointed out in giving the judgment of the court (104) those dicta "are

all considered and overruled in the action of Swinfen v. Lord Chelmsford (105)". Again (106) "they are

mere remarks in the course of an argument and not adjudications; and they were expressly overruled, as

before mentioned".

*****************

So far as concerns providing a spur to the advocate by the possibility of actions for negligence, this is

unnecessary. Both solicitors and counsel are always keen to win a case and, incidentally, to give

satisfaction to their clients so far as this is compatible with their duty to the court and to their

professional standards. This is as inevitable a part of their human makeup as is the ambition of every

judge to decide his cases right. Their danger rather lies in that they may be too keen to win. Thus to

provide a spur is bad rather than good.

The obvious disadvantages of withdrawing immunity from the advocate are as follows. On occasions it

is an advocate's duty to the court to reject a legal or factual point taken in his favour by the judge, or to

remove a misunderstanding which is favourable to his own case. This duty is of vital importance to the

judicial process. Fortunately it does not very frequently occur in a glaring form, though in a minor

degree it is fairly constant. When it does occur in a glaring form, it is very unpleasant for the advocate.

It is hard for him to explain to a client why he is indulging in what seems treachery to his client because

of an abstract duty to justice and professional honour. In the difficult borderline case it is undesirable


34

that a man should be in danger of being influenced by the possibility of an action for negligence. The

court has and must continue to have implicit trust in counsel.

Moreover, in every case there is a large number of irrelevancies and side issues that seem important to

the client but are not of help in deciding the case. The solicitor in preparing a case for counsel is rightly

loth to prune these too severely, for he is nearer to the client than is counsel, and it is therefore more

difficult for him to do it. He frequently (and rightly) leaves it to counsel to perform that task. The court

by tradition is entitled to expect counsel to perform it. Were the client but able to appreciate it, its

performance is the surest way of winning a just case. How hard this is for the client to appreciate is

known to every advocate. And this is manifest in so many hopeless appeals where the appellant's chief

ground of complaint is that the judge has failed to give weight to some irrelevant matters on which the

client sets great store.

It is important to justice that it should not get bogged down in irrelevant details. The judge in this is

often at the mercy of the advocates who have a clearer view than he can have as to which matters in the

leading of evidence or in cross examination will or will not turn out to be relevant as the case proceeds.

As things stand at present the judge trusts counsel. It is frequent for a judge to say to counsel "I should

not have thought it was relevant, but - if you tell me it will turn out to be relevant, I shall allow it". It is

impossible to expect an advocate to prune his case of irrelevances against his client's wishes if he faces

an action for negligence when he does so. Prudence will always be prompting him to ask every question

and call every piece of evidence that his client wishes, in order to avoid the risk of getting involved in

just such an action as the present. This is a defect which the possibility of an action for negligence

would greatly encourage. It is difficult and it needs courage in an advocate to disregard irrelevances

which a forceful client wishes him to pursue.

This question is of great importance for two reasons. First, if by good advocacy a case is cut down to its

essentials, it is more manageable and more likely to be justly decided by judge or jury. Secondly, the

time (and consequently the cost) is greatly diminished. An unpruned presentation of a case may actually

double or treble the time which it would have taken to present had it been properly pruned of all that

was not relevant.

In so far as it may be argued that the advocate is unduly fortunate in sharing the immunity of his fellows

in the judicial process, the judges, jurymen and witnesses, one must remember that he is faced with a

difficult task, as SIR BALIOL BRETT M.R., and the Lord President, (LORD INGLIS) pointed out. He

is entrusted with great licence and potent weapons. These must not be used simply with an eye to his

client's advancement. They must be used in the pursuit of justice and to elucidate the truth in the public

interest with an approach which is as biased in favour of his client's contentions as public considerations

allow. The constant difficulty of inducing men and women to undertake the profession of the Bar, with

its strain, hazard and rather austere self discipline, are not wholly without significance when one is

considering whether the advocate is unduly favoured as things stand at present.

******************************************************************************

TOMBLING v UNIVERSAL BULB CO [1951] 2TLR 289

[This case arose from a disputed contract for the conversion of furnaces for the defendant’s

glasshouses. On appeal the plaintiff sought to educe fresh evidence going to credit. This evidence

related to a witness leaving the prison service after a conviction and coming to court for this trial in

plain clothes accompanied by a warder also in plain clothes. The defendant’s advisors were aware that

the witness was serving a prison sentence. When he was called he was identified by his home address

and an engineer by profession. Somervell LJ considered whether there had been a ‘trick’ and was

disposed to grant a new trial. He dismissed the appeal because of the views of other members of the

court. The passage below is Denning MR’s judgment which refers to the duties of counsel.]


35

LORD JUSTICE DENNING - I agree with the judgment of Lord Justice Somervell that there is no

ground on which we can enter judgment for the defendants.

I desire to add only a few words on the application for a new trial. When Mr. Elwes first made his

request for a new trial he put it on the ground of fresh evidence which was now available to him, but it

soon appeared that this fresh evidence only went to the credit of one of the witnesses of the other side.

It could not, therefore, be received as ground for a new trial; Braddock v Tillorson’s Newspapers

Limited (65 The Times L.R. 553; [1950] 1 K.B. 47).

Later in the case, however, Mr Elwes put his request on another ground namely, improper conduct of

the case by the other side. Not only had they failed to draw the Judge’s attention to the fact that the

witness Meikle was then serving a sentence of imprisonment but they had in a sense concealed it from

the Judge by the leading questions which they put to the witness. This raises an important question of

professional duty. I do not doubt that, if a favourable decision has been obtained by any improper

Conduct of the successful party, this court will always be ready to grant a new trial.

The duty of counsel to his client in a civil case or in defending an accused person is to make every

honest endeavour to succeed. He must not, of course, knowingly mislead the court, either on the facts

or on the law, but, short of that, he may put such matters in evidence or omit such others as in his

discretion he thinks will be most to the advantage of his client. So also, when it comes to his speech he

must put every fair argument which appears to him to help his client towards winning his case. The

reason is because he is not the judge of the credibility of the witnesses or of the validity of the

arguments. He is only the advocate employed by the client to speak for him and present his case and he

must do it to the best of his ability, without making himself the judge of its correctness, but only of its

honesty. Cicero makes the distinction that it is the duty of the Judge to pursue the truth, but it is

permitted to an advocate to urge what has only the semblance of it. He says he would not have

ventured himself to have advanced this (especially when he was writing on philosophy) if it had not

also been the opinion of the gravest of the stoics, Panaetius; see Cicero de Officiis (bk, 2, ch. 14). It is

also our English rule; see Professor Christian's illuminating note on Blackstone (bk. lv, p. 356).

Tried by these tests, I see improper in the conduct of the case for the plaintiff. There is no duty on

counsel to tell the judge that a witness comes from prison to give evidence, any more than there is to tell

the judge that he has had previous convictions. It is irrelevant save as to his credit, and no counsel is

bound to bring before the judge the discreditable facts in the life of his witness, for they do not mean

that he is not to be believed on this occasion. Counsel did indeed ask the witness if he lived at 96,

Church Road, Stoneygate, Leicester, to which he answered “Yes”. If that had been done knowingly to

mislead the court, it would be improper. But after hearing Mr MacDermot I am quite satisfied that it

was not done to mislead. This question was only asked so as to give the man’s permanent address,

without disclosing the discreditable but irrelevant fact that he was at present in prison for a motoring

offence.

I agree that the appeal should be dismissed.

***************************************************************************

MEEK v FLEMING [1961] 2QB 366

[This case involves another example of an application to call fresh evidence on appeal where a police

witness’ reduction in rank has been concealed at the trial by calling him in plain clothes. In this case

there was a finding of the court being knowingly misled and deceived in circumstances where the public

interest in finalising litigation was overborne, and a new trial was ordered. The material following is

from the judgment of Holroyd Pearce LJ. The judgment of the court concluded with a statement by the


36

defendant’s QC admitting sole responsibility for the decision to avoid obvious detection of the officer’s

reduction in rank.]

The facts have been agreed between the parties for the purpose of this appeal in the following terms:-

"(1) At the date when the defendant gave evidence at the trial of the action, his true rank in

the Metropolitan Police Force was station sergeant.

(2) The defendant was reduced from the rank of chief inspector to station sergeant on

December 16, 1959.

(3) On December 16, 1959, the defendant appeared before a disciplinary board on the

following charges:-

(i) Acting in a manner prejudicial to discipline by being a party to an arrangement

with "a police constable" whereby that officer purported to have arrested a street

bookmaker on October 26, 1959, when in fact you were the officer who made the

arrest.

(ii) Without good and sufficient cause did omit promptly and diligently to attend to a

matter which was your duty as a constable, that is to say having arrested ...... for

street betting on October 26, 1959, you did not attend the hearing of the case

against him at Thames Metropolitan Magistrates' Court on October 27, 1959”.

“The defendant was reduced in rank to station sergeant on each charge, but on appeal to the

commissioner on December 80, the "punishment on the second charge was reduced to a

reprimand, but there was no variation in the first punishment".

It is conceded that those facts were known to the defendant's legal advisers and his counsel, and that as

a matter of deliberate policy they were not put before the court. A letter written by the defendant's

solicitor on November 21, 1960, pending the appeal, says:-

"The learned Queen's Counsel instructed by me was throughout, as I believe you are aware, in

full possession of all the facts relating to my client's past and present status and the reasons for

his reduction in rank, and conducted the case in full knowledge of these facts in the manner he

felt was consistent with his duty to his client and the court, and he is fully prepared to defend

and justify his handling of the case at the proper time if called upon to do so."

It having been decided not to reveal these facts, the following things occurred at the trial. The

defendant attended the trial not in uniform, but in plain clothes, whereas all the other police witnesses

were in uniform. Thus there was no visible sign of the defendant's altered status. He was constantly

addressed by his counsel as "Mr" and not by his rank of sergeant. Counsel tells us that he would so

address a sergeant in the normal case. When the defendant entered the witness box, he was not asked

his name and rank in the usual manner. No suspicions were aroused since no one had any reason to

suspect. The plaintiff's counsel, however, and the judge frequently addressed the defendant, or referred

to him, as "inspector" or "chief inspector," and nothing was done to disabuse them.

The defendant started his evidence with a brief summary of his career up to the time when he was chief

inspector at Cannon Row police station, but no reference was made to his reduction in rank. In cross

examination he was asked:-

"You are a chief inspector, and you have been in the force, you told us, since 1938”?

(A) “Yes, that is true”. That answer was a lie. Later:-

(Q) “You realise, as chief inspector, the importance of the note being accurate”?

(A) “The importance of it conveying to me what I want to give in "evidence." He was asked

further:- "Let us understand this. You are a chief inspector. How old are you?”


37

(A) “I am forty six years of age." And again:-

(Q) “I am not asking you whether you took part in the inquiries, but whether you as a responsible

and senior adult man - never mind about your being a chief inspector - had no anxiety about

this case, no concern or interest?”

(A) “No. I can only repeat I have nothing to fear."

The judge referred to the defendant as "inspector" or "chief inspector Fleming" many times in his

summing-up to the jury. It is clear that he reasonably considered that the defendant's rank and status

were relevant on credibility in a case where there was oath against oath, and where there was a question

of the defendant's conduct in the course of his duty. No doubt he felt what Singleton L.J. expressed in

Mohahir Ali v Ellmore when, in dealing with a matter concerning evidence, he said:-

"It appears to me that that evidence was irrelevant and unnecessary. The fact that a witness

who is also a defendant is a superintendent of Leeds City Police shows that he is of good

standing, and that he has the confidence of his superior officers."

They were not concerned here with some newcomer to the force who had only just finished his course,

and was out on the street full of enthusiasm to arrest the first person he could.

“The Times” report of the final speech of defendant's counsel shows that he said in reference to the

allegations of the plaintiff:-

"That was un-English, and not what the jury would expect of "any police officer who had

passed through the sieve, been trained and risen to any rank in the Metropolitan Police."

He then went on to contrast unfavourably the plaintiff's background in Fleet Street where:-

"words come out in very large letters, and the range of adjectives and description is so wide as

to make us callous."

I accept from counsel that he was intending to refer to the generality of his seven or eight witnesses, all

of whom had attained some rank above that of constable. Nevertheless, such references must inevitably

have connoted in the minds of judge and jury a reference to the status of the defendant, who was the

leading person in the case, and held (in their erroneous belief) the highest rank of all the witnesses.

The fact that the defendant's advisers were prepared to act as they did showed the great importance

which they attached to the facts concealed. If one leaves aside for the moment any question of ethics,

the hazards of such a course were extremely great. With so many police witnesses who might well

know the truth (since the defendant's demotion was circulated in police orders) the chance of somebody

in cross examination referring to the defendant by his present rank of sergeant, or letting the truth out in

some other way, was not negligible. Had that occurred, or had the plaintiff's counsel known the facts,

and elicited them if in cross examination, it seems very unlikely that the jury would accept the

defendant's case when they found how they had been deceived. Even without knowing the facts, the

jury took four hours for their deliberations; and since the plaintiff's evidence was, broadly speaking, that

of one against so many, one must, I think, conclude that he did well in the witness box.

Where a party deliberately misleads the court in a material matter and that deception has probably

tipped the scale in his favour (or even, as I think, where it may reasonably have done so), it would be

wrong to allow him to retain the judgment thus unfairly procured. Finis litium is a desirable object, but

it must not be sought by so great a sacrifice of justice which is and must remain the supreme object.

Moreover, to allow the victor to keep the spoils so unworthily obtained would be an encouragement to

such behaviour, and do even greater harm than the multiplication of trials.


38

In every case it must be a question of degree, weighing one principle against the other. In this case it is

clear that the judge and jury were misled on an important matter. I appreciate that it is very hard at

times for the advocate to see his path clearly between failure in his duty to the court, and failure in his

duty to his client. I accept that in the present case the decision to conceal the facts was not made

lightly, but after anxious consideration. But in my judgment the duty to the court was here

unwarrantably subordinated to the duty to the client. It is no less surprising that this should be done

when the defendant is a member of the Metropolitan Police Force on whose integrity the public are

accustomed to rely.

***************************************************************************

LEWIS v His Honour JUDGE OGDEN (1984) 153 CLR 682

[In the Victorian Supreme Court, a barrister’s fine for contempt was quashed but the conviction was

not. He appealed with special leave. The case is important in guiding the distinction between forceful

action and a wilful insult, and the manner in which counsel can abuse their privilege and be themselves

guilty of contempt.]

THE COURT delivered the following written judgment:-

In the trial the appellant represented an accused named Paul. The co-accused were represented by other

counsel. In the course of his address to the jury the appellant made certain remarks concerning the role

of a judge in a criminal trial, drawing a distinction between the judge's comments on questions of law

and his comment on questions of fact, informing the jury that they were not bound to accept his

Honour's views on the facts and inviting them to consider his views on the facts with some care

because, in the appellant's view, the judge had shown a strong disposition to favour the prosecution case

against the case the appellant had advanced on behalf of his client.

On the following day the judge raised the question whether he should discharge the jury in view of the

appellant's remarks. The judge was concerned that the remarks might have a tendency to react

adversely in the minds of the jury against the appellant's client and that a warning to the jury to

disregard them might have the effect of underlining the incident without removing the tendency. It

seems that all the counsel appearing in the case expressed the view that there was no need to discharge

the jury. However, his Honour discharged the jury without verdict and indicated that he would hear

submissions on behalf of the appellant on the following day as to why he should not be found guilty of

contempt of court.

On the following day the appellant was represented by Mr Berkeley Q.C. The judge did not distinctly

formulate a specific charge of contempt. He indicated that five pages of the transcript record of the

appellant's closing address to the jury contained remarks which it is alleged amounted to contempt.

Apart from identifying the five pages of the transcript, his Honour did not indicate in what respect the

relevant transcript evidenced specific conduct giving rise to a contravention of section 54A(1)(a). After

hearing Mr. Berkeley's submissions on behalf of the appellant, his Honour delivered judgment in the

following terms:-

"I am satisfied, beyond reasonable doubt, that the remarks that you made to the jury in your

address to it were a wilful insult to the court, in the face of the court; moreover, I am satisfied

that it was a calculated insult, which appeared to me to be read from prepared notes; but

whether or not the words were read from prepared notes it was a calculated insult. The manner

and tone of delivery of the words spoken made that clear. I do not accept the submissions

made by your counsel that the remarks would more properly be interpreted, as ‘merely

offensive’, and did not cross the borderline into insult.


39

It was a misbehaviour as counsel and interfered with, or tended to interfere with, the course of

justice.

I do take into account that you held a difficult defence brief and the pressures of trial, what

may sometimes be called “The heat of battle”, so to speak, may have had some effect upon

your judgment; but I also take into account that you are a barrister of ten years call, or

thereabouts, I believe.

The sentence of the court is that you are fined $500, in default, distress."

At common law words or conduct in the face of the court or in the course of proceedings, in order to

constitute contempt, “must be such as would interfere, or tend to interfere, with the course of justice"

(Parashuram Delaram Shamdasani v King-Emperor ). Instead of making interference, or tendency to

interfere, with the course of justice an element in the offences which it created, subsection (1)

introduces the new element of conduct which is wilful in pars. (a) and (c). In these two paragraphs the

word “wilfully” means "intentionally", or "deliberately", in the sense that what is said or done is

intended as an insult, threat, etc. Its presence does more than negative the notion of 'inadvertently" or

"unconsciously" (Bell v Stewart). The mere voluntary utterance of words is not enough. "Wilfully"

imports the notion of purpose.

It is submitted that the section should be read in the light of the common law of contempt and that,

when so read, there should be imported into pars. (a) and (c) the common law requirement that the acts

must be such as to interfere, or tend to interfere with the course of justice. The short answer to this

argument is that all the acts mentioned in pars. (a) to (d) inclusive are acts which in their very nature

interfere or have a tendency to interfere with the administration of justice and have been so regarded

traditionally. To take but one example, a wilful insult to a judge or jury during a trial necessarily

interrupts the course of the trial and tends to divert attention from the issues to be determined. So in Ex

parte Pater (30) where a barrister was adjudged guilty of contempt in that he wilfully insulted a

juryman during the course of his address to the jury, the wilful insult was treated as an obstruction of

the administration of justice and, accordingly, as a contempt. Cockburn C.J. observed (31):-

“...... they are words which counsel might have uttered in the honest discharge of his duty for

the purpose of vindicating the interests of his client and preventing the other jurors from being

prejudiced or unduly influenced by the opinion of the foreman; and if they had been so uttered,

though they were harsh and offensive to the juryman to whom they were applied, that would

be within the right and privilege of counsel. But if they were uttered with the intention to

insult the juryman, then they were an abuse of the privilege of counsel, and the judge might

treat the uttering of them as a contempt....”

Blackburn I., after referring to the power of Quarter Sessions to punish "an unwarrantable obstruction

of the administration of justice in the face of the Court", continued:-

“if counsel under colour of addressing the jury, insults a juryman, or the Court, I cannot doubt that

it would be such an obstruction as would be a contempt ...”

It follows that a person who wilfully insults a judge in the course of proceedings in court does

something which necessarily interferes, or tends to interfere, with the course of justice.

In construing the expression "wilfully insults" and in evaluating the relevant part of the appellant's

address we must keep firmly in mind the high responsibility which counsel has to ensure that his client's

case is fully and properly presented, especially at a criminal trial. It has been recognized on many

occasions and by judges of great distinction that the responsibility of counsel in representing his client


40

may require him to plead his client's case fearlessly and with vigour and determination. At the same

time it has always been recognized that counsel has "an overriding duty to the court, to the standards of

his profession and to the public", to quote the words of Lord Reid in Rondel v Worsley. This overriding

duty requires him to "contribute to the orderly, proper and expeditious trial of causes in our courts"

(Saif Ali V Sydney Mitchell & Co.). It was for this reason that the Full Court of the Supreme Court of

New South Wales in Ex parte Bellanto: Re Prior, after acknowledging the necessity for "courage and

firmness" on the part of counsel and after expressing agreement with Lord Denning's discussion in The

Road to Justice (1954), pp 55-56, of Lord Erskine's conduct in the celebrated case of the Dean of St

Asaph observed that "courage and courtesy should go hand in hand".

However, mere discourtesy falls well short of insulting conduct, let alone wilfully insulting conduct

which is the hallmark of contempt. The freedom and the responsibility which counsel has to present his

client's case are so important to the administration of justice, that a court should be slow to hold that

remarks made during the course of counsel's address to the jury amount to a wilful insult to the judge,

when the remarks may be seen to be relevant to the case which counsel is presenting to the jury on

behalf of his client. This is not to say that comments made in counsel's address, apparently relevant to

the client's case, may not constitute a contempt. Counsel might wilfully insult a judge "under colour of

addressing the jury", to use the words of Blackburn J. Or he might yield to the temptation of seeking to

divert the jury's attention away from the issues by promotion a dispute with the judge, in the belief that

this tactic would advantage his client. A deliberate manoeuvre of this kind, calculated to interfere with

the due course of the trial, would amount to a contempt, even if it involves no insult to the judge, for

example, under pars. (c) or (d) of s.54(l).

But when the remarks which are said to be wilfully insulting are relevant to the issues to be determined

by the jury and are germane to the client's case, the context in which they are to be found is, generally

speaking, unlikely to stamp them with the imprint of a deliberately insulting message. If the words bear

that character in such a context, it is because they convey, according to their primary or natural and

ordinary meaning, a wilful insult.

It is with these comments in mind that we turn to the critical part of the appellant's address. It began in

this fashion:-

"This trial has been or is going to be just slightly unusual from most trials. Most trials have

the situation where there are three very clearly defined roles going on in front of you. There is

the defence who are on this side who defend, there is the prosecutor on that side and he

prosecutes and obviously this is the arena proper and you have got a judge who judges. You

normally think of a judge as being a sort of umpire, ladies and gentlemen, and you expect an

umpire to be unbiased. You would be pretty annoyed if, in the middle of a grand final, one of

the umpires suddenly started coming out in a Collingwood jumper and started giving decisions

one way. That would not be what we think a fair thing in an Australian sport. It may surprise

you to find out that his Honour's role in this trial is quite different. That his Honour does not

have to be unbiased at all except on questions of law. On questions of fact, his Honour is quite

entitled to form views and very obviously has done so in this trial. His Honour will tell you

that any comment that he makes does not bind you. That it stands or falls on its own merits

but that instead you must consider those along with all of the other comments and accept or

reject them as you see fit. That is different from his direction on the law. I speak of that, ladies

and gentlemen, because as I say, his Honour has given some fairly definite views in this case.

They have been pretty adverse to the accused Paul and certainly my presentation of the case on

behalf of Paul."

The main thrust of the comments which we have just quoted, perhaps obscured by the manner in which

they were expressed, was to inform the jury that they needed to distinguish between the judge's

observations on the facts and his observations on the law, to point out that the jury was at liberty to


41

disregard the observations on the facts and to urge the jury to treat them with caution, because his

Honour's attitude, as manifested in some instances during the trial, and mentioned later in the address,

was adverse to Paul and to the way in which the appellant presented his defence. This message, which

might have been expressed simply, forcefully and inoffensively, was complicated by the melodramatic

and unhelpful reference to the role of the Collingwood umpire, a role which was contrasted with that of

the judge.

The critical question then is whether in the way in which he made those points the appellant trespassed

beyond the bounds of legitimate advocacy and wilfully insulted the judge. Although the question is by

no means easy to answer, we have come to the conclusion that what was said was neither insulting nor

intended to be so. As we have already indicated, the appellant's remarks are susceptible of the

interpretation that the judge had expressed a consistently adverse view of the accused's case and its

presentation that the judge's treatment of it was one sided, and that, accordingly, there was a real risk

that his summing up would be of the same character. The appellant had no means of knowing in

advance what the trial judge would say in his summing up. Having concluded that there was a risk that

adverse comments would or might be made, the appellant was placed in the difficult position of

endeavouring to counter such comments in advance by raising the matter directly in his address. The

appellant, in embarking upon this delicate undertaking, by his reference to the Collingwood umpire and

the statement from the dock, and the manner and tone of his delivery - a matter to which the judge

referred came close to insulting the judge. However, having regard to the interpretation which we

place on what the appellant said, namely that his Honour's attitude to Paul's case was adverse and unfair

in the sense of being "one sided", we do riot consider that the learned judge could have been satisfied

beyond reasonable doubt that the appellant's comments amounted to an insult. The appellant's conduct

was extremely discourteous, perhaps offensive, and deserving of rebuke by his Honour, but in our view

it could not be said to constitute contempt.

In conclusion three comments should be made. The first is to recall that the contempt power is

exercised to vindicate the integrity of the court and of its proceedings; it is rarely, if ever, exercised to

vindicate the personal dignity of a judge (Ex parte Fernandez, Reg. V. Castro: Skipworth's Case;

Bellanto). The second is that the summary power of punishing for contempt should be used sparingly

and only in serious cases (Shamdasani Izuora V. The Queen). The final comment is that the charge of

contempt should specify the nature of the contempt, i.e., that it consists of a wilful insult to the judge,

and identify the alleged insult.

In the result we would allow the appeal.

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Ex parte BELLANTO: re PRIOR [1963] NSWR 1556

[Apart from the senior counsel’s effort to achieve a new trial by his misbehaviour in court, this case is

also significant for the NSW Court of Appeal’s expression of what constitutes contempt in the face of

the court. The passages chosen deal with theses aspects. The full decision deals with other contempts

and natural justice as well.]

The Full Court (Herron, A.C.J., Sugerman and Ferguson, JJ.): This is an application to make absolute a

rule nisi for a writ of certiorari. The object of this rule is to remove into this Court the record of certain

proceedings, being the summary conviction and fine of £20 by the respondent judge upon a charge of

contempt of court against the applicant, a barrister, on 13 July 1961, so that the same may be quashed.

The happenings out of which the conviction and fine arose took place at Sydney Quarter Sessions, the

gravamen of the charge being that Mr. Bellanto, a barrister who was appearing for an accused,

attempted by misconducting himself to bring about a situation in which the learned Chairman of


42

Quarter Sessions would be constrained to order him out of Court and thus to compel the Chairman to

discharge the jury and order a retrial of the case.

From a reading of the entire transcript an inference could arise that Mr. Bellanto harboured resentment

against the ruling of the judge, and that he later lost his temper, which distorted his sense of proportion.

Similarly, it could be inferred that he persuaded himself that a trial before another jury had to be

obtained at all costs. He said to the judge, in the absence of the jury:-

''I ask you to remand the accused for another trial at another place'', to which his Honour

replied:-

''I will not discharge the jury”. Mr. Bellanto then said:-

''If I withdraw from the trial, would your Honour grant this accused an adjournment?'', to

which his Honour replied:-

''The trial will go on today, with or without counsel '. Mr Bellanto said:-

''Then I will not desert my client''.

Pausing here for a moment, it is quite clear that Mr Bellanto's decision not to desert his client was

eminently correct, even if it might have been better expressed. For it is counsel's obligation to accept at

the time the ruling of the judge on such matters, once finally given, and it is not his right to seek ways

of going behind it or circumventing it. His course if he feels that the ruling is wrong, is to have his

objection noted and, as was later done in this case, appeal to a higher tribunal.

MR BELLANTO: I ask your Honour not to interfere or interrupt my cross examination of this witness.

Your Honour knows Butler's Case in point on the matter...

We observe at this point that a judge may with complete propriety and in his discretion ask of a witness

those questions which he thinks are necessary to avoid obscurity and are in the interests of clarity and

justice. In the instant case he was fully entitled to draw the proseentrix’s attention to any other passage

in the depositions which appeared to him to qualify or explain the passage read by counsel. We are not

unmindful of the possibility of a judge in some cases destroying the value of cross examination by

prematurely putting questions on the point: per Lord Greene, MR., in Yuill v. Yuill, [1945] 1 All ER.

183, at p. 185. The minor intervention here by the learned Chairman obviously could not fairly

warrant any show of ill-tempered remonstrance by counsel.

The mention of Butler's Case was probably a reference to R. v. Butler (1953), 70 W.N. (N S.W.) 222,

where the Court of Criminal Appeal considered the propriety of a judge taking part, as if he were

counsel, in an elaborate examination or cross examination of a witness, in a manner unfair to the

witness and to counsel. The facts and decision in that case have but scant relevance to the instant trial.

In the present case, later happenings and findings made by Judge Harvey Prior must be considered

alongside the events to which we have referred.

After the reference to Butler's Case, his Honour said:-

“Would you sit down, please? I am pointing out that lower down in the evidence in the page

from which you read, this appears”

Q.- You were going home to Marrickville this night, were you not!

A.- No.

Q.- A moment ago did you not say you were not going home to Marrickville that night?

A.- I did not know what you meant.


43

We shall later refer to the nature of the contempt charged in greater detail, but his Honour described Mr

Bellanto's conduct at this point over the matter of the depositions as a gross want of regard and respect

to the Court and as outrageous and disgraceful and unbecoming a member of the Bar. He also found it

was insulting and disrespectful, an outrageous outburst in the face of the public and the jury. His

Honour expressed the view that Mr. Bellanto had insulted the Court by his manner of address and mode

of shouting and cited an instance of Mr Bellanto having "shouted back" at an observation by the judge.

His Honour further said:-

“I had no control over you at all, for a time. You let yourself go in a manner in which I have

never seen any counsel perform in my experience at the Bar. What you did yesterday, I refuse to

tolerate in Court. You have gone close to the borderline on a number of occasions, not only with

me but also with other judges”.

MR BELLANTO: “I have not had complaints from other judges”.

His HONOUR: “I have. Quite a number of judges object to your manner of conducting a case; as

to the way you shout and the way you go on in Court”.

Again, during argument his Honour later said that Mr Bellanto's conduct was more than offensive. “It

was disgraceful”, he said, and “over the odds”, and he reiterated that it was "more than offensive" and

demonstrated a gross want of that regard and respect to which a court is entitled.

The question always is, in such a case as the present, did the barrister '5 conduct tend to interfere with

the course of justice'? Was he attempting to obtain a result of legal proceedings different from that

which would follow in the ordinary course?

"Contempt of court", understood as a legal term, principally signifies disrespect for what is entitled to

''legal regard''. In its origin it consisted of an offence against the Sovereign as the fountain of justice or

against His royal palace where justice was said to have been dispensed by the King in person.

Contempt was considered as an offence because it imputed to him a breach of the coronation oath to

"administer justice to his people" (Oswald, Contempt of Court, 3rd ed. (1911), p. 1). On the history of

the contempt jurisdiction see articles by Sir John Fox in (1908), 24 L.Q.R. 184 and 266; (1909), 25

L.Q.R. 238 and 354; (1920), 36 L.Q.R. 394; (1921), 37 L.Q.B. 191, and The History of Contempt of

Court (1927).

"Criminal contempt" may be defined as contumelious or obstructive behaviour directed against the

court and one example of this is contempt in the face of the court.

Every contempt is in some respect an obstruction of justice, a sinning against the majesty of the law,

and the time honoured punitive jurisdiction over such offences is now undisputed. Contempt of court

has been defined as a disobedience to the court, or an opposing or a despising of the authority, justice or

dignity thereof. It commonly consists in a party's doing otherwise than he is enjoined to do, or not

doing what he is commanded or required by the process, order, or decree of the court. Sometimes it

arises by one or more; their opposing or disturbing the execution or service of the process of the court,

or using force to the party that serves it; sometimes by using words importing scorn, reproach or

diminution of the court, its process, orders, officers, or ministers, upon executing or serving such

process or orders. It is also a contempt to abuse the process of the court by wilfully doing any wrong in

executing it; or making use of it as a handle to do wrong; or to do anything under colour or pretence of

process of the court without such process or authority.

As already observed, it is not the personal dignity of the judge which is involved, and no judge would

allow his personal feelings to have any weight in the matter: per Earl, C.J., Ex parte Fernandez (1861),

30 LJCP. 321, at p. 332. In speaking of the branch of the contempt broadly characterized as

scandalizing a court or a judge, Lord Russell in R. v. Gray, supra, at pp.40 and 41, dealt with the

publication in a newspaper of an article containing scurrilous personal abuse of a judge with reference

to his conduct as a judge at judicial proceedings, his Lordship expressed an important qualification to

such a broad description of contempt. He said:-


44

"Judges and Courts are alike open to criticism, and if reasonable argument or expostulation is

offered against any judicial act as contrary to law or the public good, the Court could or would

treat that as contempt of Court. The law ought not to be astute in such cases to criticize

adversely what under such circumstances and with such an object is published; but it is to be

remembered that in this matter the liberty of the press is no greater and no less than the liberty

of every subject of the Queen. Now, as I have said, no one has suggested that this is not a

contempt of Court, and nobody has suggested or could suggest, that it falls within the right of

public criticism in the sense I have described. It is not criticism: I repeat that it is personal

scurrilous abuse of a judge as a judge. We have, therefore, to deal with it as a case of

contempt, and we have to deal with it brevi manu. This is not a new fangled jurisdiction; it is a

jurisdiction as old as the common law itself, of which it forms part. It is a jurisdiction, the

history, purpose, and extent of which are admirably treated in the opinion of Wilmot, C.J, in

his Opinions and Judgments. It is a jurisdiction, however, to be exercised with scrupulous

care, to he exercised only when the case is clear and beyond reasonable doubt; because, if it is

not a case beyond reasonable doubt, the Courts will and ought to leave the Attorney-General to

proceed by criminal information.''

Our jurisdiction is not to attempt to decide this application on the weight of the evidence which was

before the learned Chairman. The words uttered by Mr Bellanto, as they appear in the transcript, may

in proper circumstances have been uttered in the honest discharge of his duty and to vindicate the

interests of his client and to try and prevent the learned Chairman from interrupting his cross

examination on what he felt was a critical point. If the words were harsh and disrespectful to the judge,

although in breach of good manners, they may have been within the legal right and privilege of counsel.

Counsel may, for instance, in appropriate circumstances and in a proper manner request the judge to

refrain from interfering with his cross examination at what he honestly believes to be a critical point.

But if his words took the form of insults to the judge or of setting at defiance his ruling as to the

discharge of the jury, or if the manner of their utterance was insulting and offensive, then they could

amount to an abuse of a barrister's privilege and the judge might treat the utterances as contempt and

deal with them accordingly. On the materials before us, can we hold that the learned Chairman came to

a conclusion so unreasonable and wrong that he had no jurisdiction to fine Mr Bellanto for contempt?

We cannot say so. We are of opinion that there was evidence on which the words and conduct of the

applicant might have been adjudged by the learned Chairman to have been a contempt. The case is not

one as to which there is no reasonable ground for his Honour so treating them. This being so certiorari

does not lie and the application, so far as it is based on the fifth ground, must fail.

***************************************************************************

MECHANICAL AND GENERAL INVENTIONS CO v AUSTIN [1935] AC 346

[The House of Lords had to consider whether the agreement for an option over a patent for a sunshine

roof of a motor car was correctly set aside on appeal below. The following passage is extracted from

the judgment of Viscount Sankey LC. It is critical of the nature of cross examination at the trial, and

thereby points to the correct standards expected of an advocate.]

I cannot part from this case without referring to the remarks made in the Court of Appeal upon the

method in which was conducted in the Court of first instance. The learned Master of the Rolls said:

There remains one feature of this case upon which, in association with my colleagues, I desire to make

serious comment - that is the cross examination to which the leading actors on either side, Mr Lehwess

and Sir Herbert Austin, were subjected. Measured by the shorthand note, it appears that Mr Lehwess's

examination occupied 80 pages; his cross examination occupied 265. The examination of Sir Herbert

Austin occupied 39 pages, and his cross examination 148 pages. There is a tedious iteration in some of

the questions asked, and prolonged emphasis is laid on some matters, trivial in relation to the main

issues. Cross examination is a powerful and valuable weapon for the purpose of testing the veracity of

a witness and the accuracy and completeness of his story. It is entrusted to the hands of counsel in the

confidence that it will be used with discretion; and with due regard to the assistance to be rendered by it

to the Court, not forgetting at the same time the burden that is imposed upon the witness. We desire to


45

say that in our opinion the cross examination in the present case did not conform to the above

conditions, and at times it failed to display that measure of courtesy to the witness which is by no means

inconsistent with a skilful, yet powerful, cross examination.

With that censure I agree, except that I cannot think it can be justly applied to the counsel who appeared

on behalf of the plaintiffs or to any of the counsel who appeared at the bar of your Lordships' House. It

is right to make due allowance for the irritation caused by the strain and stress of a long and

complicated case, but a protracted and irrelevant cross examination not only adds to the cost of

litigation, but is a waste of public time. Such a cross examination becomes indefensible when it is

conducted, as it was in this case, without restraint and without the courtesy and consideration which a

witness is entitled to expect in a Court of law. It is not sufficient for the due administration of justice to

have a learned, patient and impartial judge. Equally with him, the solicitors who prepare the case and

the counsel who present it to the Court are taking part in the great task of doing justice between man

and man.

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46


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4. A barrister's duty to the client

A Barrister's duty to the client: General In R v O'Connell the defendants were tried for conspiracy and sedition against the Crown. Certainly in 1844 there were highly political motives for the Crown to prove its case. The matter is significant as an illustration of the general duties owned to a client because of the seemingly tireless way in which counsel attacked every element of the charges, the case and the manner in which the trial was conducted. As Crampton J indicated -

"... though an advocate for an individual is retained and remunerated for his services yet he has a prior and perpetual retainer on behalf of truth and justice."

In Rondel v Worsley, an appeal case in which the appellant alleged his solicitor's failure to enter, at trial, all relevant matters pertaining to his defense and also the submission of evidence which was inaccurate in substance. The court held that a solicitor's duty to his/her client requires due care and skill in the discharge of the implied contract of engagement and Lord Reid expressed the conflict of duties involved in litigation. The court considered the distinction between a solicitor's duty of care in general terms and the required standard where the solicitor acts as an advocate.

4.1 Should they be different, and if so, why? In arriving at your answer consider Bar Rules rr 16 -19; and 21 - 31.

Acceptance and retention of briefs Cabrank rule: The general principle of the cabrank rule assumes that a barrister must take the brief next offered to him/her by an instructing solicitor. As Ross and MacFarlane interpret the rule -

"The notion is if you are available, the appropriate fee is right and the work is within the barrister's capability, then, the barrister must accept the brief."

Bar Rules 87 - 90 prescribe the conditions upon which a brief must be refused; and, Rules 91 and 92 the conditions under which a brief may be refused. Rules 91 - 102 provide the many conditions upon which a brief must not be returned, with particular reference to a long list of potential scheduling conflicts, conflicts of interest etc. Nangus v Charles Donovan also illustrates the major investment by the courts in the independence of the Bar.

"the Court is concerned that it should have (the) assistance of independent counsel for parties whose interests are not identical in the case before it. The Court must necessarily be concerned for its own protection...."

In Re Burton, Danby v Burton (cited in Nangus) it was also argued that -


48

"It is the duty of the trustee's counsel to assist the Court, and he ought not to argue on behalf of a beneficiary..."

4.2 It would appear that there are a large number of exceptions to the cabrank rule, yet the Bar consistently holds it out as a general protection for clients. Why? 4.3 If there are so many logical and ethical reasons why a barrister should or should not take, retain or return a brief, what if anything does the cabrank rule protect? 4.4 Can you see any compelling reasons why it should specially apply in one area of the law over any other? 4.5 What public policy issues are inherent in the rule?

To act in client's best interests

4.6 In Smout v Smout counsel made an intemperate remark, when referring to the effect of the proceedings and effect on the public as a rort, in front of the jury, which could readily be construed as unjustified. This is an obvious example of going too far in pursuing a client's best interests. However, what about the growing tendency for personal injury and other tort matters to be settled at the court steps?

Is this prejudicial to the client?

In these circumstances what controls should there be on counsel, or instructing solicitor's to act in their client's best interests?

4.7 In what other circumstances should there be controls upon lawyers to ensure that they consistently act in their client's best interests? How could or should these be adopted? 4.8 Are there any contradictions, in this regard, in the requirement to act in the client's best interests and the role and expectations of the legal practitioner in the Court?

To act within authority In Harvey v Phillips counsel, along with others, encouraged a plaintiff to settle a personal injury matter, although she expressed her extreme resistance to this outcome. Consent ultimately was reluctantly given and counsel proceeded to settle the matter on the basis that these were his instructions. Later the plaintiff revoked the consent and unsuccessfully sought to have it set aside. In R v Snow the appellant absconded on bail during the conduct of a criminal trial. The Court held that counsel and the instructing solicitor were barred from continuing the appellant's case and he was convicted. The appeal showed that significant evidence and witnesses to prove innocence were barred from appearing, by this decision. The appeal was granted and the conviction quashed. In R v Berk the appellant alleged that a trial for malicious wounding and rape miscarried because his inexperienced counsel and instructing solicitor, failed to act upon his instructions to enter or examine all of his defence to the particulars of the Crown case. This failure meant that the complainant was not questioned on relevant aspects of her evidence. The barrister admitted in the appeal that he omitted aspects of the appellant's instructions and that he lacked the experience to rectify the problem. The Court of Appeal disallowed the appeal.

4.9 These cases provide illustrations of the failure to act upon instructions, involvement in altering or amending instructions; and, errors and omissions in complying with instructions.

What do they say about a legal practitioner's obligations and authority to act, both


49

within and outside of the client's instructions?

Is it any different for criminal matters or civil proceedings?

To act independently Counsel is vested with a number of powers and obligations, the primary obligation of counsel to the client is to act with reasonable, care, diligence and judgment and in the best interests of his/her client. In Swinfen v Lord Chelmsford an action involving counsel's decision to settle an estate matter contrary to the client's wishes and legal liabilities of counsel flowing from that action. It was held that counsel could not be prosecuted for acting in a manner that he perceived to be in his client's best interests, even where those actions were contrary to the express instructions of his client. And further, that the costs of proceedings resulting from that decision were not the responsibility of counsel but the parties engaged in the action. Pollock C.B. stated -

".. all the law requires from a counsel... is that he shall discharge his duty to the best of his ability and that the defendant was not responsible if he intended to act honestly and for the benefit of his client."

4.10 What general interests are protected by the notion that counsel has the power and discretion to act independently? 4.11 How or in what ways should the engagement of counsel form part of a retainer for professional services? 4.12 Should the instructions of a client form part of those terms?

Immunity as an advocate In Swinfen v Lord Chelmsford barristers were granted unrestricted immunity from litigation for negligence, and, this view held for some 100 years, until in Rondel v Worsley the House of Lords not only upheld its validity, but extended it to the work of solicitors. The immunity does not stop at the door of the court, as argued by Lord Reid in Rondel. Where Lord Morris also argued that ".. no action will lie against counsel for any act honestly done in the conduct or management of the cause." This was further argued in Rees a New Zealand Court of Appeal case on similar issues. The immunity, therefore, extends to work that is preliminary to, or directly affecting the work to be carried out in court, when the matter comes to hearing. However, it was also argued in Rondel, that the protection should not be any wider than would be absolutely necessary in the interests of the administration of justice. A number of public policy reasons are given in Giannarelli to support the continuation of the general immunity, including -

protection from relitigation of cases,

the right of barristers to be treated in the same manner as judges, juror and witnesses in proceedings, in terms of protection from civil litigation resulting from their actions;

the fear that potential negligence actions would make barristers overly cautious in the conduct of proceedings; and


50

the barristers would put their obligations to their clients before those of their obligations to the courts.

In Saif Ali it was argued in a narrow 3-2 decision, which ultimately upheld the general immunity, that the immunity should not be a blanket one, but that the circumstances of the matter should be taken into account.

In civil proceedings such as the Saif Ali case, there is no redress for alleged negligence where the limitation period has expired. In criminal matters there is a range of options, including appeal to a higher court on procedural grounds. It is clear that the doctrine of immunity has moved ground since the Swinfen case to the current day. The general standards of due care and diligence required by many professions are consistently high, yet doctors and surgeons do not enjoy the immunity from negligence that legal practitioners do. In late 2000 the House of Lords revoked counsel’s immunity in the United Kingdom.

4.13 Do you think there is a case for a further restatement of the advocate's immunity from litigation by a lay client in criminal or civil proceedings? 4.14 If so, why and what should be those limitations?

In Donellan, Handley JA found that the immunity from litigation is not co-extensive between the role of barrister acting as an advocate and solicitor acting as an advocate, for the reasons given -

"[a] solicitor enters into a binding contract with the client which may either expressly or by necessary implication limit the solicitor's authority as the agent of the client, in the conduct of the litigation .... For example, a solicitor ... is bound to take reasonable care to properly instruct competent counsel ... [A] solicitor who briefs himself [or herself] may be liable in negligence of briefing an incompetent advocate although not liable in negligence as advocate."

4.15 Consider also, the extent to which the limitation should apply to the general work of a solicitor, as opposed to that of a solicitor acting as an advocate. Should they be different, and, if so, why?

Confidentiality Lawyers have both an ethical and contractual duty to maintain the confidences of their clients. The issue of client confidentiality is fundamental to the fiduciary relationship between legal practitioner and client. A breach of client confidentiality is a breach of the agency principles relating to the fiduciary relationship. A failure to maintain the confidence of a client can give rise to disciplinary proceedings for misconduct, whether the practitioner is practicing as a barrister or solicitor. According to the Law Council of Australia's Model Rules, the protection is not limited to matters already protected by legal professional privilege. The New South Wales Bar Rules 103 - 111 describe the circumstances where confidentiality provisions apply, and, where conflict of interest and confidentiality issues must be balanced. The confidentiality provisions apply to original and derivative materials relating to a client's matter, including lawyer's notes. The protection may extend beyond the death of a client. Additionally, certain


51

matters covered by s120 of the Evidence Act, are also included, particularly work product of a litigant appearing in person. Exceptions to the general rule include those matters -

required by law to be disclosed;

required by a rule of court to be disclosed; (see s122(2) of the Evidence Act and Sevic v Roarty); and

required by a court order to be disclosed.

4.16 Compare Model Rule 2 and Bar Rule 34 - are there conflicting standards?

In complying with the requirements above, the practitioner must take all reasonable steps to test the validity of the law compelling the disclosure.

4.17 What are the primary benefits of the confidentiality provisions, and legal professional privilege to the conduct of legal practice? 4.18 Why should lawyers take reasonable steps to test the validity of any law or court direction to disclose the confidential aspects of client matters? 4.19 In considering your answers, examine the cases of R v Dean and Tuckiar v R, why are privilege and confidentiality so important in criminal trials? 4.20 Is legal professional privilege in the public interest in criminal matters? Why or why not?

Case extracts:

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NANGUS v CHARLES DONOVAN [1989] VR 184

[The first judgment was by Young CJ who was concerned about a clear conflict of interest in counsel

proposing a course of action that could apply the total liability on one only of the clients for whom he

appeared.]

Young C.J.: I have had the advantage of reading the joint judgment to be delivered by Kaye and

Southwell JJ. I agree in the conclusions which their Honours have reached and I do so substantially for

the reasons they have expressed. I wish however to add a few words of my own upon one aspect of the

case.

Mr. Southall appeared for both respondents and began his argument with the contention that the learned

Judge had assessed the damages incorrectly in that he had not reduced them on account of the fact that

there had been changes of ownership interests amongst the lessors. The contention was that a lessor was

not entitled to damages for loss of rent in respect of the period after he ceased to be the owner of the

premises. In this contention both Mr. Southall's clients have the same interest.

Mr. Southall's second argument however was that the guarantor was not liable under the guarantee for

any damages arising from the breach of the lessee's obligations under the lease. If this argument


52

succeeded the whole of the burden of the damages payable would be thrown on the first appellant. A

clear conflict of interest arose.

Mr. Southall assured us that his instructions were that both of his clients, who were represented by the

same solicitors, agreed to the course he was pursuing notwithstanding the apparent conflict and upon

that assurance we allowed the argument to proceed. reserving the question whether any difficulty would

arise in disposing of the appeal.

In view of the conclusions at which we have arrived, no difficulty does arise in our disposing of the

appeal. It should not however be assumed that the Court would, on another occasion. allow a similar

course to be followed.

The general rule undoubtedly is that counsel ought not to appear for two clients whose interests may

conflict: see Halsbury's Laws of England, 4th ed., vol. 3, para. 1143. The first case cited as authority for

that proposition is Day V. Ponsonby (1842) 5 I. Eq. R. 24 in which counsel for a plaintiff moved for an

order that the Accountant General should draw on the cash in bank to the credit of the cause pursuant to

the general allocation report in favour of several persons mentioned in the report. By that report, a

certain sum of money, in which the plaintiff was not interested, was allocated to a creditor. The sum

was included in the notice upon which counsel moved. The same counsel also moved on a separate

brief on behalf of a third person that the money so allocated to the creditor should be paid to the third

person. The report of the case is very short and simply records that the Court was of the opinion that

counsel could not hold the two briefs.

Another authority is Re Burton, Danby V. Burton [1901] W.N. 202 in which counsel announced upon

an originating summons that he appeared for the trustee who had no beneficial interest in the outcome

of the proceedings and also for the life tenant. The question for determination on the summons was

whether a certain receipt was to be treated as capital or income. Farwell J. would not allow the

summons to proceed observing:

"It is the duty of the trustee's counsel to assist the Court, and he ought not to argue on behalf of

a beneficiary." Farwell J.'s decision has been continuously acted upon ever since.

Reference may also be made to Re Morgan, Brown V. Jones (1927) 71 Sol. Jo. 650 in which Clauson J.

said, at p.651: "The principle is that where trustees are represented by the same solicitors, and one of

them is interested in the trust fund beneficially, it is prima facie the solicitor's duty to employ separate

counsel to represent the independent trustee in order that the Court may have the assistance of such

separate counsel."

Every case must depend upon its own circumstances but it is important to notice, as Re Burton and Re

Morgan show, that the Court is concerned that it should have the assistance of independent counsel for

parties whose interests are not identical in the case before it. The Court must necessarily be concerned

for its own protection.

For the reasons which I have given it is unnecessary to go further in the present case It is sufficient to

say that where the interests of two parties apparently conflict or may conflict it will be for the Court to

say whether there may be a departure from the prima facie rule.

****************************************************************

HARVEY v PHILLIPS (1956) 95 CLR 235

[The appellant was a lady who complained that she had her will overborne by lawyers eager to settle

her matter. The High Court considered that her consent to the settlement, although fleeting was real,

and therefore irreversible. Although an old case, the ethical dilemma of the practitioner exerting

pressure on a party to settle, is still present - particularly where one acts for a plaintiff in a personal

injury matter. The wisdom of full written disclosure and a written consent to settle cannot be stressed


53

too strongly. As this case demonstrates - timing is everything. If the principal has withdrawn your

instructions, as agent you have the power but not the authority to settle on the agreed terms. ]

About a fortnight earlier at a conference with the plaintiff’s senior counsel he recommended a

compromise. At another conference on the Saturday before the trial he expressed the same view

strongly. On the Monday, the day of the trial, a long drawn out attempt was made by her counsel to

persuade the plaintiff to settle the action. It is unnecessary to state in detail what took place but it is

plain that great pressure was exerted upon her to give her consent to a settlement. After a jury had been

impanelled the court was asked to adjourn until twelve noon. During the negotiations between counsel

which followed the defendants' offer was increased to £4.000. The plaintiff however proved obdurate.

According to her account a strange scene took place in the precincts of the court in which she was

subjected in various ways to extreme pressure and persuasion by her counsel which she withstood. But

even if her account be disregarded it sufficiently appears from the record that she resisted the advice to

compromise and that counsel went to unusual lengths to overcome her resistance. After a time both her

counsel and counsel for the defendants requested the judge to see the plaintiff in his private chambers.

This his Honour consented to do. We know from a communication from the learned judge to the

plaintiff what took place. His Honour informed her that both counsel had told him that they had arrived

at a compromise verdict which they both considered to be fair. He told the plaintiff that the acceptance

of the verdict was a matter entirely for her own decision but he understood that her counsel and her

solicitor both strongly recommended the acceptance. He then told her that in her own interests she

should consider their views carefully and not lightly cast their advice aside as they were both capable

and experienced in litigation of that nature. The plaintiff replies to his Honour that she would never

agree to settle the action that she would not accept their offer, that the amount offered was ridiculously

inadequate, that their attitude towards her for years had ben contemptuous and that she would not settle

for any amount. She repeated this sentiment several times in different words and his Honour then said:-

“Very well, Mrs Harvey, the case will go on” and terminated the interview. As she left his Honour’s

chambers the plaintiff said: “They are trying to force me to settle but I shall never agree". After this

interview, however, further pressure was exerted upon the plaintiff to obtain from her a consent to settle

the action. Mr Beard’s evidence is that for about another quarter of an hour her senior counsel

continued to urge the appellant to accept the sum of £4,000, that she on her side maintained her refusal

to do so and reiterated that she would not settle. Mr Beard says that she was quite adamant that she did

not want to settle. Ultimately counsel said to him: Well, if your client won’t take my advice I will

have to return the brief to you, but you talk to her for a while now. I am going back to my chambers for

half an hour. If there is any change in her attitude before the half hour is up you come and get me." He

put down his brief upon the table and went back to his chambers. There can be little doubt that the

plaintiff was left with the impression that her senior counsel had thrown up her case. The junior

counsel and solicitor, the plaintiff's daughter and a number of other people were left either in the

conference room outside the court or in the passageway. At some stage, perhaps before she saw the

judge in his chambers, phenobarb tablets were administered to the plaintiff, apparently with the object

of reducing the excitement into which she had been thrown. According to the evidence of Mr. Beard,

whose testimony has been accepted by the Supreme Court, he, the junior counsel and the plaintiff's

daughter all urged the plaintiff to accept the offer of compromise. The plaintiff was at one stage again

reduced to tears. A Mr. Darby, M.L.A., who had taken an interest in the case and was there as a friend,

put his arm on her shoulder and said: “There is no need to get any more upset about it, Joan. We are all

trying to do our best for you ", and she said "All right I will take it.’ Mr Beard said that, if she was

prepared to take it, he would go over and get counsel from his chambers. This he did and counsel for

the parties took their seats at the Bar table. Ultimately the defendants counsel were informed by the

plaintiff's counsel that she would accept the offer of £4,000 and senior counsel on each side wrote out

and signed a paper entitled " Terms of Settlement. ". Its contents were: “By consent -I. Jury to be

discharged. 2. Verdict for Plaintiff of £4,000. 3. Terms not to be disclosed." The judge took his seat in

court, the paper was handed up to him and his Honour congratulated the parties on reaching a

settlement of the action and said that he considered it was a satisfactory settlement for all concerned.


54

The court then adjourned, the time being about ten minutes past twelve. During this proceeding the

plaintiff was seated in the body of the court with her daughter. She is, however, deaf, and in all

probability she did not herself hear what took place.

**********************

The difficulty in the present case lies in the very unwilling and ephemeral character of the consent

which the plaintiff was led to give. But it is enough if she expressed a real intention to consent, even if

experience might have suggested that it was an attitude she was not likely to maintain. In the

circumstances one might have expected that she would be asked to sign a written authority. But that

was not done. However the finding of the Supreme Court, supported as it is by evidence, suffices to

establish that she definitely did give her authority, however reluctant it may have been. It is impossible

to regard the authority she thus gave as insufficient to support the compromise. The issue is one which

must be considered from the defendants' point of view as well as from hers. When the defendants

accepted the compromise requiring them to pay £4,000 they believed that thereby they were putting an

end to the litigation. They acted upon the statement made by her counsel that the compromise was

made with the authority of the plaintiff. Once it appears that the plaintiff did in fact give an assent

which had not been withdrawn up to the moment when the terms of settlement were signed, it can be

nothing to the point to say afterwards to the defendants that it was the result of her real desires or her

judgment being overborne by her advisers, whatever may have been the degree of moral pressure that

she felt.

The appeal must therefore be dismissed.

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55

5. A barrister’s duty to others A Barrister's duty to the public, other parties and colleagues: Generally As a member of the legal profession a barrister owes duties of care to his/her client, the courts and other legal practitioners, as well as to the general public in terms of the fair and appropriate administration of justice.

5.1 Why do you think that it is in the interests of the public that barristers be governed by a general duty to the public, other parties to proceedings and to their colleagues? 5.2 In the adversarial system it is often questionable whether legal proceedings are a search for the truth. Do barristers owe any general duties in this regard?

As a prosecutor In general terms, a barrister, when acting as a prosecutor, must not seek to win a conviction at any cost. The New South Wales Bar Rules rr 62 - 72 govern the behaviour which is acceptable for a barrister acting as a prosecutor. Rule 66 states: 66. A prosecutor must disclose to the opponent as soon as practicable all material (including the

names of any means of finding prospective witnesses in connexion with such material) available to the prosecutor or of which the prosecutor becomes aware which could constitute evidence relevant to the guilt or innocence of the accused, unless:

(a) such disclosure, or full disclosure, would seriously threaten the integrity of the

administration of justice in those proceedings or the safety of any person; and (b) the prosecutor believes on reasonable grounds that such a threat could not be avoided by

confining such disclosure, or full disclosure, to the opponent being a legal practitioner, on appropriate conditions which may include an undertaking by the opponent not to disclose certain material to the opponent’s client or any other person.

[Inserted Gazette No. 66 of 20 June 1997 p 4558] 66A. A prosecutor who has decided not to disclose material to the opponent under Rule 66 must

consider whether:

(a) the defence of the accused could suffer by reason of such non-disclosure;

(b) the charge against the accused to which such material is relevant should be withdrawn; and

(c) the accused should be faced only with a lesser charge to which such material would not be so relevant.

[Inserted Gazette No. 66 of 20 June 1997 p 4564 - 4565] 66B. A prosecutor must call as part of the prosecution’s case all witnesses:

(a) whose testimony is admissible and necessary for the presentation of the whole picture;


56

(b) whose testimony provides reasonable grounds for the prosecutor to believe that it

could provide admissible evidence relevant to any matter in issue;

(c) whose testimony or statements were used in the course of any committal proceedings; and

(d) from whom statements have been obtained in the preparation or conduct of the

prosecution’s case;

unless:

(e) the opponent consents to the prosecutor not calling a particular witness; (f) the only matter with respect to which the particular witness can give admissible

evidence has been dealt with by an admission on behalf of the accused; or

(g) the prosecutor believes on reasonable grounds that the administration of justice in the case would be harmed by calling a particular witness or particular witnesses to establish a particular point already adequately established by another witness or other witnesses;

provided that:

(h) the prosecutor is not obliged to call evidence from a particular witness, who would

otherwise fall within (a)-(d), if the prosecutor believes on reasonable grounds that the testimony of that witness is plainly untruthful or is plainly unreliable by reason of the witness being in the camp of the accused; and

(i) the prosecutor must inform the opponent as soon as practicable of the identity of any

witness whom the prosecutor intends not to call on any ground within (f), (g) and (h), together with the grounds on which the prosecutor has reached that decision. [Inserted Gazette No. 66 of 20 June 1997 p 4564-4565]

5.3 Rule 66 requires a prosecutor to disclose, to his/her opponent, as soon as practicable, all material which could constitute evidence relevant to the guilt or innocence of the accused, except in specific circumstances.

Do you believe that the circumstances addressed by the rule are justified?

Are there any occasions when convicting an alleged criminal justifies any means to achieve it?

Ross and MacFarlane state that the duty of a prosecutor is -

"...to see that a case is presented fairly, and in a way that avoids unfair prejudice arising in the minds of the jury. ... in general, the prosecution should call as witnesses all persons who are eye-witnesses to any events which go to prove the elements of the crime charged, and any witnesses who are considered by the prosecutor to be material, in the sense that their evidence is cogent, relevant and reliable."

In Richardson it was argued that the Crown was obliged to call all witnesses to an event which gave rise to a criminal charge, irrespective of whether their evidence would support or harm the case. However, the Crown Prosecutor declined to call a specific witness on the basis that he doubted her truthfulness and veracity. The court held that the Crown Prosecutor had the right to determine which witnesses should be called and that the defense had no power to compel the judge to require the


57

Crown to call a specific witness. Indeed, it was up to the defense to call her and the Crown to cross-examine, particularly on the issues of credibility. In R v Apostilides (1984) 15 A Crim R 88, a case on appeal from the Full Court of the Supreme Court of Victoria, where convictions for rape were set aside and a new trial ordered. The basis for the order was that the Crown Prosecutor failed to call as a witness a person named on the indictment and who it was expected would be examined on the substance of the indictment in the Crowns evidence in chief. Specifically he failed to call the persons Brodie and Tibbals who were in the house prior to the alleged offence being committed. The judge found that the Crown's failure to call two witnesses who were involved in events prior to the conduct of the alleged rape and who could attest to the substance of the material in the indictment was a "failure that was prejudicial to the applicant causing the trial to miscarry". In summation the judge, when expressing unease about the manner in which the Crown had conducted its case, noted that the failure to call the two witnesses, though they had been called in the defence case, had prejudiced the defence's capacity to cross-examine on evidence that was crucial to the case; and that this failure was what gave rise to the miscarriage. The names of the two witnesses appeared on the witness list as an additional witnesses. At the commencement of the second day of the trial the Crown Prosecutor announced that he had formed the judgment that the witnesses Brodie and Tibbals should not be called. He had informed defence counsel of this decision. The defence advised the judge that the Prosecutor had not given any reason for this decision and that this raised concerns for the defence case, as much of the examination of the prosecutrix was based on the content of the witnesses' statements, therefore there was a need to call them, so that he might cross-examine them on their statements. The Crown furnished the defence with copies of the statements made to Police by both Brodie and Tibbals and the contents of each statement was verified with each witness. When the defence raised the issue of the statements and the importance of the evidence, the trial judge also indicated that he was unlikely to call either witness, where the Crown had decided not to. As a result, the defence was completely hamstrung in being able to bring the evidence of two crucial witnesses into the trial. In a number of English and New Zealand cases, it is the practice of the judge, where a prosecutor fails to call specific witnesses, to call them where it is likely that they have evidence that is central to the case. To do so is seen as being in the interests of justice. See Oliva (1965) 49 Cr App R 298; Tregear (1967) 2 QB 574; Cleghorn (1967) 2 QB 584 and Fuller (1966) NZLR 865. In Apostilides, were the prosecutor dealing with the case today, he would be in breach of Rule 66 because he failed to call all relevant and material witnesses without having objective justification. In Whitehorn, the High Court acting as a court of appeal from the South Australian Court of Criminal Appeal quashed a conviction for sexual assault, where it held that the verdict was unsafe, based on the failure of the Crown to test the evidence of the complainant, a child. Instead, the conviction proceeded on the police record of interview only and the disputed confession of the accused. In Anderson, an appeal from a conviction for murder, it was argued by counsel for the appellant that the Crown case was based primarily on the evidence of a person who had already been convicted for the same murders. However, the evidence led by the Crown showed considerable inconsistencies in the stories put by the witness and potential collusion with between the police and the witness to manufacture a plausible interpretation of the facts.


58

5.4 Given that relevance and reliability are considerably subjective constructs, particularly in a criminal trial, what are the fundamental ethical obligations that a prosecutor has in presenting evidence in criminal proceedings? 5.5 In highly emotive events, such as a rape or murder of a child, the general public has a considerable emotional stakeholding in seeing that someone is seen to pay for the offence. However, are prosecutors justified in securing a conviction at any cost? What are the issues involved?

The Legal Aid Commission Kelly v London Transport, was a personal injury case supported by a considerable number of applications to the legal aid fund. Mr Kelly's legal representatives expended considerable sums of money on specialist medical advice and protracted proceedings. During the discovery process London Transport paid into court some seven hundred and fifty pounds in satisfaction of the plaintiff's claim, with a later final offer of four thousand pounds for damages and costs. This was rejected. Ultimately, the claim was exposed as bogus and judgment was finally entered for the plaintiff on only a small issue of injury, with seventy-five pounds being the damages awarded. London Transport then appealed for costs for the extended and 'frivolous' proceedings. The court did not accept that hardship was proved and conceded that it would not be in the public interest to allow the recovery of costs against the legal aid fund. However, the potential for an alternative remedy was suggested, being an action against the plaintiff's solicitors and counsel for the recovery of its costs. Such as occurred in Myers v Elman [1940] AC 290.

5.6 Given the extent to which legal aid funds are stretched in all states and territories on Australia do you think that legal practitioners owe a duty to the public in regards to the expenditure of monies on individual cases supported by Legal Aid Commission funds? Why, or why not?

The New South Wales Bar Association Rule 100, provides a right to a barrister to return a brief accepted under a conditional costs agreement if 'the barrister has the firm view that the client has no reasonable prospects of success of achieving a result better than the offer".

5.7 If the Kelly matter occurred in New South Wales, on the facts presented, would the barrister have an obligation under r.100? What was it and how should it have been argued?

Duty to the opponent

5.8 The adversarial system, by its very nature, is highly competitive. What ethical precepts are central to the professional conduct rules relating to duties owed to an opponent? 5.9 Are they more important in criminal or civil trials? Why, and in what circumstances?

Case extracts:

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R v APOSTILIDES (1984) 15 A Crim R 88

[While this case alone has extracts printed the High Court case of Whitehorn and Court of Criminal

Appeal case of Anderson should also be considered.


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In Whitehorn v R (1983) 152 CLR 657, the High Court had to review a decision of the crown

prosecutor, not to call the complainant, a young female.

Deane J made the following points:-

..... in a criminal trial ‘it is for the Crown and not the judge to determine what witnesses

are called by the Crown’

“The observance of traditional considerations requires that prosecuting counsel refrain

from deciding whether to call a material witness by reference to tactical considerations”.

p664.

Counsel is entitled not to call witnesses where administration of justice is inhibited by the

‘unduly large number’ to prove a point or where ‘the evidence which he or she would give

is plainly untruthful or unreliable.’

The Crown should give reasonable notice of any decision not to call a nominated witness

‘whom it would otherwise be expected to call’

If asked why the witness is not called, the Crown, “ordinarily” should supply the reason.

Anderson’s case dealt with the triple convictions of a person charged with the Hilton bombing of

13.2.78. R V Anderson (1991) 53 A Crim R 421. The other two members of the bench agreed with the

judgment of Gleeson CJ, who concluded on p 453 (after referring to one error). “This was

compounded by what I regard as an inappropriate and unfair attempt by the crown to persuade the jury

to draw inferences of fact, and accept argumentative suggestions that were not properly open on the

evidence and that were in some respects contrary to the evidence”. The court allowed the appeal and

entered a verdict of acquittal.

Apostilides was a joint judgment of the Full Court of the Supreme Court of Victoria. The matter was

originally a charge of sexual assault and during the trial the prosecutor announced that he would not

be calling two witnesses shown on the indictment, a couple who had developed amorous tendencies and

were in the complainant’s house at the time.

The initial excerpt is the trial judge’s summary used by the court of appeal; the second is the Court’s

conclusion on the duties of prosecutors.

Of more direct disciplinary significance is the adoption of the principles by the Bar Rules, also adopted

by Professional Conduct and Practice rule 23 for solicitor advocate.]

The Crown made available to the applicant's legal advisers copies of statements of both Brodie and

Tibballs taken from them by police officers. Outside the Court, the applicant's legal advisers checked

with each witness the contents of their respective statements.

When the Crown case closed, Mr Barnett did not renew the application which he had foreshadowed.

The applicant gave sworn evidence verifying and expanding the contents of his record of interview.

Brodie, when called by the applicant's counsel, gave evidence substantially in accord with the contents

of his police statement. During the course of cross examination of Brodie by the Crown Prosecutor, the

applicant's counsel made application that he should be at liberty to cross examine the witness by way of

reexamination and that the trial judge should call Tibballs so that the witness might be cross examined

by both counsel. Disallowing the application, his Honour stated that he was not satisfied the interests of

justice made it necessary for him to call either of the witnesses. The prosecutor continued cross

examining Brodie, adducing from the witness that, inter alia, eleven years previously in the County

Court he was convicted of conspiracy and released on a bond to be of good behaviour.

Tibballs was then called in the applicant's case. She was cross examined but briefly by the Crown

Prosecutor without any challenge being made to the veracity of her evidence. Neither in evidence in

chief nor in cross examination did she depart in any material particular from the matters set out in her

police statement.


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Brodie and Tibballs and the applicant were the only witnesses called by defence counsel.

During the course of the Crown Prosecutor's final address to the jury the foreman asked a question. The

discussion which followed and his Honour's answer to the question are matters which are not relevant to

this appeal. What is significant in connection with this ground of appeal is that, after replying to the

jury's question and in their absence, his Honour, addressing the Crown Prosecutor, expressed concern

about the course the trial had taken. He drew attention to the circumstances that the Crown Prosecutor,

after cross examining her, had described to the jury Tibballs' evidence as 'a very credible account of the

whole evening'. His Honour reminded the Crown Prosecutor that, by failing to call her as a Crown

witness, the accused's counsel had been deprived of an opportunity to cross examine Tibballs whose

evidence the Crown had commended to the jury. After repeating that he had been left in a state of

considerable unease about the way the trial had developed, his Honour volunteered that his decision to

disallow the accused's counsel to cross examine Tibballs might have been wrong. Counsel for the

accused then made application that the jury be discharged. In the course of further discussion, his

Honour said to the Crown Prosecutor:-

“I think Tibballs should have been called by the Crown and that statement is in accord with the

longstanding tradition that has applied, as you know, and I know, and everybody else knows,

that witnesses who give a creditable account of the events at least of significant events, would

ordinarily be called by the Crown.'

A short time later his Honour, again addressing the Crown Prosecutor, said:-

“I must say that my present state of mind is that I think it would have been a fairer trial for the

accused had Tibballs, at any rate, been called by the Crown. To say otherwise would be a

misstatement of my feelings in the matter”.

Following further protracted discussion the Crown Prosecutor disclosed to the court information upon

which he had decided not to call as witnesses in the Crown case Tibballs and Brodie. Those reasons

were as follows: first, the prosecutor had been informed by a member of counsel, who had a previous

professional association with her, that the prosecutrix had been told by Tibballs that she had put herself

into the defence camp and that she was inflamed by any attempt to get her to give evidence for the

prosecution. The Crown Prosecutor added that he suspected, as it had been subsequently confirmed in

evidence by her, that Tibballs had maintained a romantic attachment with Brodie.

Secondly, as a result of his enquiries made on the first morning of the trial, the Crown Prosecutor had

learnt that Brodie had engaged in schoolboy theft, that eight counts of false pretences preferred against

the witness had been adjourned, and that he had been convicted of a charge of Conspiracy.

In the absence of the jury, Senior Detective Ryan was then called as a witness. He swore that during

the first day of the trial, while standing together outside the Court, Brodie had told him that the trial was

more or less a foregone conclusion, that he knew the outcome, and that the accused would be found not

guilty. Ryan further swore that when asked what made him say that, Brodie, smiling, said he would tell

the police officer after the trial.

Further discussion between his Honour and the counsel ensued. His Honour refused the application to

discharge the jury, adding that he did not consider that a high degree of need to do so had arisen.

It is clear from the judgments the subject of the present application that their Honours held a clear view

of the way in which the learned trial judge should have handled the situation that was presented during

the trial. The primary question was seen to be whether there were sufficient reasons for the prosecutor's

decision not to call Brodie and Tibballs, it being implicit in such a question that the Crown can be

required immediately after the close of the Crown case to defend its decision by expounding its reasons.

After careful consideration, Kaye J (with whose reasons the Chief Justice and Tadgell J were in

substantial agreement) concluded that the Crown's reasons were insufficient to justify its decision and

that in the proper performance of his role the prosecutor ought to have called both Tibballs and Brodie


61

as witnesses in the Crown case. His Honour considered that if the trial judge had followed the correct

procedure he would have established that insufficiency at the close of the Crown case. Having invited

the Crown, without avail, to call them, he would then himself have called and sworn both Brodie and

Tibballs in turn and so made them available for cross examination by the accused's counsel: see Lucas

[19731 VR 693 at 698, 706; Evans [1964] VR 717 at 719. Because the prescribed procedure had not

been followed defence counsel was constrained to call Brodie and Tibballs as his own witnesses,

thereby losing the right to cross examine them and exposing them to cross examination by the Crown.

In the result, Kaye J concluded that the accused had been unduly prejudiced in the conduct of his

defence and that a substantial miscarriage of justice had occurred. It should be added that there is no

suggestion that the trial judge was empowered to direct the prosecutor to call the witnesses. The

existence of that power was denied by the Full Court in Evans and the court was correct in taking that

view. As Gowans J observed in Eastwood and Boland [1973] VR 709 at 714:-

"It is apparent from the authorities that there can be no direction to the Crown to call the

witness."

We have come to the conclusion that the following general propositions are applicable to the conduct of

criminal trials in Australia:-

(1) The Crown Prosecutor alone bears the responsibility of deciding whether a person will be

called as a witness for the Crown.

(2) The trial judge may but is not obliged to question the prosecutor in order to discover the

reasons which lead the prosecutor to decline to call a particular person. He is not called upon

to adjudicate the sufficiency of those reasons.

(3) Whilst at the close of the Crown case the trial judge may properly invite the prosecutor to

reconsider such a decision and to have regard to the implications as then appear to the judge at

that stage of the proceedings, he cannot direct the prosecutor to call a particular witness.

(4) When charging the jury, the trial judge may make such comment as he then thinks to be

appropriate with respect to the effect which the failure of the prosecutor to call a particular

person as a witness would appear to have had on the course of the trial. No doubt that

comment, if any, will be affected by such information as to the prosecutor's reasons for his

decision as the prosecutor thinks it proper to divulge.

(5) Save in the most exceptional circumstances, the trial judge should not himself call a person to

give evidence.

(6) A decision of the prosecutor not to call a particular person as a witness will only constitute a

ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a

whole, it is seen to give rise to a miscarriage, of justice.

We have not attempted in our first proposition to deal exhaustively with the responsibility of the

prosecutor. The description of that responsibility, which we have cited from Richardson, emphasises

that the prosecutor's role in this regard is a lonely one, the nature of which is such that it cannot be

shared with the trial judge without placing in jeopardy the essential independence of that office in the

adversary system. It is not only a lonely responsibility but also a heavy one. A decision whether or not

to call a person whose name appears on the indictment and from whom the defence wish to lead

evidence must be made with due sensitivity to the dictates of fairness towards an accused person. A

refusal to call the witness will be justified only by reference to the overriding interests of justice. Such

occasions are likely to be rare. The unreliability of the evidence will only suffice where there are

identifiable circumstances which clearly establish it; it will not be enough that the prosecutor merely

has a suspicion about the unreliability of the evidence. In most cases where a prosecutor does not wish

to lead evidence from a person named on the indictment but the defence wishes that person to be called,

it will be sufficient for the prosecutor simply to call the person so that he may be cross examined by the

defence and then, if necessary, be re-examined.


62

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KELLY v LONDON TRANSPORT EXECUTIVE [1982] 2 All ER 842

[This case involved a ‘plausible Irishman and chronic alcoholic’ who sued for damages and lost. The

LTE wished to recover their costs expended in fighting this legally aided plaintiff.

The two excerpts are from Lord Denning’s judgment.

It is a salutary warning of the duties to the Court and the manner in which we are to approach hopeless

cases with improvident claimants. In the local context bear in mind the present capacities of courts to

make orders for costs against practitioners. Whilst practitioners are at personal risk for costs wasted

or’ thrown away’ for delay or adjournment, the potential for a total indemnity for breach of duty

exists.]

The judge's ruling

The bearing lasted three days. On 30 October 1980 Caulfield J gave judgment. In picturesque language,

he exposed the bogus claim. He found the plaintiff a wholly unacceptable witness. He rejected

completely the evidence of Dr Denham. He said that he was 'over obliging in his quest for the plaintiff'.

He condemned him for changing his report at the request of the plaintiff. He said:-

“I do not think the solicitor should have asked him anyway to have changed his report and,

secondly, if a consultant was asked, knowing that he is delivering a forensic report, one that is

going to be used in the courts, he should not have obliged and therefore he falls down in my

estimation”.

Counsel for the Law Society has told us today that it was not really the solicitor who was responsible

for changing the report. The matter had been put to counsel. Counsel had advised the obliteration of

references to previous medical reports. But, whoever it was, it is quite plain to my mind that the

specialist's report should not have been changed at the request either of the solicitor or counsel.

The judgment

I must add that London Transport at an early stage in the trial did not contest liability. They admitted

that Mr Kelly had a slight cut on the head in 1974. For this the judge awarded him £75. The legal aid

fund took all that. So Mr Kelly went away with nothing. His solicitors were expecting, no doubt, to be

paid for all their work out of the legal aid fund, including all the costs of the medical experts, and so

forth, leaving London Transport to bear all their own costs of fighting this bogus claim.

The claim against the legal aid fund

London Transport felt, quite rightly, that they had had a 'raw deal' over this claim. It was a bogus claim

which had been maintained and supported by the legal aid fund. If the legal aid fund had not supported

it, it would never have got going at all. Yet here are London Transport. They had been put to great

trouble and expense. In addition the medical men and the lawyers on both sides, and, I would add, now

the courts, have been engaged for hours and hours and days and days on it. It is a disgrace to the

administration of the law that this should be allowed to happen.

I can well see the difficulty. I confess that I would like to overcome it. I am tempted to accept the

ingenious suggestion made by O'Connor LJ. It was a 'hardship' on London Transport Executive to have

to go to all the trouble and expense of instructing doctors and counsel to fight this bogus claim. It was a

'severe' hardship because it took up so much of their time when they could have been better employed

on other things. It was a 'financial' hardship because it put them to the expense of £8,000.

But I feel that I must go with my brethren. They feel that this ingenious suggestion is too ingenious. The

phrase 'severe financial hardship' is to be read as a whole. No one could ever say that this sum of £8,000


63

for costs would make any appreciable difference to London Transport's affairs. That was the view of the

judge, and I feel we must affirm it. So the London Transport Executive cannot recover against the legal

aid fund.

Another remedy is open

Nevertheless, I cannot leave this case without pointing out to London Transport Executive that there

may be another remedy open to them. They can proceed against the solicitors and counsel personally

and require them to pay the costs. That was done in Kyle V Mason ([963) Times, 3 July, which was

decided by this court. The solicitor for the appellant submitted to an order for costs because he had not

properly carried out his duties with regard to legal aid: see the Legal Aid Handbook for [981, p [84. In

R & T Thew Ltd -v- Reeves [1982] QB 172 at 207 this court ordered that the defendant's solicitors

should attend before the court on a date and time to be arranged for the purpose of considering whether

or not they should be ordered to pay the costs personally on the ground that such costs were incurred

and occasioned as a result of a mistake of their clerk.

Over the weekend I have looked at the authorities in this matter. As a result, the principle is clear that a

solicitor is under a duty, not only to his own client who is legally aided, but also to the unassisted party

who is not legally aided. If the solicitor fails in that duty, the unassisted party is at liberty to call him

before the court, whereupon the court can make an order that he is to make good any loss or expense

caused to the unassisted party by any breach of it. This is well established. It is not confined to legally-

aided cases, but to all cases, an order to make the solicitor pay the costs of the other side. As Abbott CJ

said as long ago as 1822 in Blundell V Blundell 5 B & AId 533 at 534, 106 ER 1286:'... it will be a

wholesome lesson to others. . .' Lord Hatherley LC said in Re Jones ([870) LR 6 Gb App 497 at 499

that solicitors must

“not only perform their duty towards their own clients, but also towards all those against

whom they are concerned, and that care should be taken to see that the litigation is the

bonafide litigation of the client who instructs the solicitor, and not a litigation carried on

altogether on the solicitor's account.' (My emphasis.)

This principle was emphatically affirmed by the House of Lords in Myers V Elman 1939] 4 All ER 484

at 489, [1940] AC 282 at 290, where Viscount Maughan said:-

'These cases did not depend on disgraceful or dishonourable conduct by the solicitor, but on

mere negligence of a serious character, the result of which was to occasion useless costs to the

other parties (My emphasis).

These then are the duties of solicitors who act for legally-aided clients. They must inquire carefully into

the claim made by their own legally-aided client so as to see that it is well founded and justified, so

much so that they would have advised him to bring it on his own if he had enough means to do so, with

all the risks that failure would entail. They must consider also the position of the other side. They must

not take any advantage of the fact that their own client is legally aided and so not able to pay any costs.

They must not use legal aid as a means to extort a settlement from the other side. They must remember

the position of the defendant and that he is bound to incur a lot of costs to fight the case. If a reasonable

payment is made into court, or a reasonable offer is made, they must advise its acceptance. They must

not proceed with the case on the chance of getting more. They must put out of their minds altogether the

fact that, by going on with the case, they will get more costs for themselves. They must not run up costs

by instructing endless medical experts for endless reports or by any unnecessary expenditure. They

must not ask a medical expert to change his report, at their own instance, so as to favour their own

legally-aided client or conceal things that may be against him. They must not 'settle' the evidence of the

medical experts as they did in Whitehouse v Jordan, which received the condemnation of this court (see

[980] i All ER 650 at 655 and the House of Lords. As Lord Wilberforce said ([1981]1 All ER 267 at I

WLR246 at 256-257):-

'Expert evidence presented to the court should be, and should be seen to be, the independent

product of the expert, uninfluenced as to form or content by the exigencies of litigation.'


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All this is not only in regard to solicitors but also to counsel as well. We all know that the area

committees depend largely on the opinion of counsel, whether legal aid should be given for the purpose

or not, and whether the case should proceed further or not. So much so that counsel have a special

responsibility in these cases. They owe a duty to the area committees who rely on their opinions. They

owe a duty to the court which has to try the case. They owe a duty to the other side who have to fight it

and pay all the costs of doing so. If they fail in their duty, I have no doubt that the court can call them to

account and make them pay the costs of the other side. They will not be able to escape on the ground

that it was work done by them in the course of litigation. They cannot claim the immunity given to them

by Rondel v Worsley [1967] 3 All ER 993, [1969] 1 AC191. That only avails them in regard to their

own client. They have no immunity if they fail to have regard to their duty to the court and to the other

side.

If these precepts are observed, I hope we shall in future have no more disgraces such as have attended

this case. But for the reasons I have given, I would dismiss this appeal.

***************************************************************************


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6. Solicitors’ duties and the regulation of solicitors

A Solicitor's duty to the Court and to the client: The Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 provide guidance on the duties owed by a solicitor to the Court and to a client. The Legal Profession Uniform Law (NSW) also specifies a range of obligations that a solicitor owes in return for admission and the right to practice as a lawyer. See also the Legal Profession Uniform Law Application Regulation 2015. Fiduciary duty: What are the fundamental precepts of the solicitor's fiduciary duty? In Law Society of New South Wales v Harvey, the solicitor concerned was condemned for preferring his own interests over those of his client? The financial excesses of the 1980s saw an unprecedented number of defalcations. The Fidelity Fund was established to protect the interests of clients whose property or funds were converted to a solicitor's own use or lost through a failure of the solicitor's fiduciary obligations, in particular "the failure to account". Riley (2000) extracts:

[5335] A fiduciary's ability to affect the interest of another person

A description of fiduciary relationships is given by Mason J in Hospital Products Ltd v United States

Surgical Corp (1984) 156 CLR 41 at 96-7; 55 ALR 417 at 454; 4 IPR 291 at 329. He remarked that the

"critical feature" of a fiduciary relationship "is that the fiduciary undertakes or agrees to act for or on

behalf of or in the interests of another person in the exercise of a power or discretion which will affect

the interests of that other person in a legal or practical sense". Mason J referred to the vulnerability of

the other person to the abuse by the fiduciary of the latter's position.

Professor Finn ("Fiduciary Law and the Modern Commercial World" in Commercial Aspects of Trust

and Fiduciary Obligations (ed E McKendrick), Clarendon Press, Oxford, 1992, p 7) offers a description

of a fiduciary, which, he confesses, "is no more precise than a description of the tort of negligence", in

the following terms (at p 9):

... a person will be a fiduciary in his relationship with another when and in so far as that other is

entitled to expect that he will act in that other's interests or (as in a partnership) in the joint interests

to the exclusion of his own several interest.

[5340] Loyalty in service

The consequential obligation of a fiduciary, Finn states, is "loyalty in service" and he suggests that can

be stated in the following terms:

A fiduciary

(a) cannot misuse his position, or knowledge or opportunity resulting from it, to his own or to

a third party's possible advantage; or

(b) cannot, in any matter falling within the scope of his service, have a personal interest or an

inconsistent engagement with a third party-

unless this is freely and informedly consented to by the beneficiary or is authorised by law.

Finn describes his statement as an adaptation of the formulation of Deane J in Chan v Zacharia (1984)

154 CLR 178 at 201; 53 ALR 417 at 435.


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Although Finn's article was written prior to the decision of the Privy Council in Clark Boyce v Mouat

[1993] 3 WLR 1021; [19931 4 All ER 268 he referred to the duty of loyalty owed by a solicitor to each

of the parties, with whom the solicitor seeks to act in tile same matter. Finn observed (at p 24) that the

duty of disclosure is not limited only to the fact of the "double employment" but it requires the solicitor

"to appraise each client in turn as to the extent to which the fiduciary's exertions on [the clients'] behalf

will or may be qualified or compromised". On the question of the "segregation" of information, within,

say, a large law firm partnership through the device of a Chinese wall, Finn comments that such an

arrangement ought not be permitted as there is the risk of compromising a fiduciary's duty of loyalty.

"Segregation", he says, "is not a loyalty engendering device: it simply does not address the vice that

inheres in concurrent adverse representation": at p 26.

Finn, in referring to "former client conflicts" involving the preservation of confidential information

imparted to a firm by a former client, comments (at p 27) that "the matter is not seen simply in orthodox

breach of confidence terms, because it is coloured by the fiduciary character of the first client

relationship in virtue of which the information was obtained".

"Separate matter conflicts" are described by Finn (at p 30) as those which occur when a firm has

acquired confidential information from one client and later deals with another client in a matter distinct

from the dealing with the first client but in which the information could be useful to the firm or its

second client. The duty of secrecy owed to the first client may clearly be in conflict with a duty of

disclosure that may arise in relation to the second client. The solicitor's conflicts of interest examined

in Spector v Ageda [19731 Ch 30; [19711 3 WLR 498; [19711 3 All ER 417 have been noted at

[5240.1]. Finn comments:

the Spector v Ageda negligence liability is another (hazard of non disclosure): an adviser cannot

justify a failure to make relevant information available to a client because that information is

subject. to a duty of secrecy to a third party.

[5345] Preferment of solicitor's own interest - Harvey's case

A gross abuse by a solicitor of his fiduciary duties owed to investor clients of his firm was revealed and

condemned by the Supreme Court of New South Wales in Law Society of New South Wales v Harvey

[1976] 2 NSWLR 154 (noted at [5255]).

In delivering the judgment of the Court, Street CJ said at 169-70:

The defendant stood in a fiduciary relationship to his clients, which placed upon him special

responsibilities where a conflict with his own interests arose. There cannot be any doubt that the

duty of a solicitor to his client is paramount, and that he must not prefer his or the interest of another

to that of his client. We are unimpressed by claims of the defendant of lack of awareness of that

duty followed by claimed enlightenment resulting in a new appreciation of his duty. An

appreciation of that duty depends, not upon some technical instruction, but upon understanding and

applying the ordinary concepts of fair dealing between honourable men. Over a century ago in

Tyrrell v Bank of London (1862) 10 HL Cas 26 at 39-40; 11 ER 934 at 939-40 the then Lord

Chancellor, Lord Westbury said:

My Lords, the decision which I shall advise your Lordships to pronounce in this case rests, in

my opinion, on very clear principles and rules of conduct, of which it would be in the highest

degree mischievous to impair the force or weaken the application ... The principle is that the

solicitor shall not be permitted to make a gain for himself at the expense of his client. The client

is entitled to the full benefit of the best exertions of the solicitor.

The court's summary of its conclusions as to the defendant solicitor's conduct was stated as follows at

172-3:

Upon an examination of the general course of the defendant's conduct, and that in relation to

particular clients, we come to the inescapable conclusion that, on a grand scale, extending over

some years, the defendant, deliberately and for his own benefit, caused the affairs of his clients to be

intermingled with his affairs and that, while supposedly acting for them, he grossly preferred his


67

own interests to those of his clients. He used his position as solicitor to channel the money of his

clients for use as the risk money in his own ventures, into which he put very little, and which

involved substantial speculations in land. He recklessly disregarded the need to protect his clients'

property, by failing to provide adequate securities. Moneys were invested in ventures, upon

securities, or with the lack of them, and upon terms that no reputable solicitor acting independently

could have contemplated. So investing clients' moneys and advising and permitting clients to so

invest was not due to any lack of commercial or legal experience, but to the pressure of his own

self-interest. The clients concerned were mostly persons inexperienced in matters of investment and

business, and some were completely lacking in understanding of these affairs. In the case of many,

to their trust in him as a solicitor was added their trust in him because of his connection with church

organisations.

Hutley JA noted in Law Society of New South Wales v Moulton [19811 2 NSWLR 736

at 756:

What was decided by this Court in Harvey represented no innovation in law. The judgment, itself,

was expressly based upon the speech of Lord Westbury in Tyrrell v Bank of London (1862) 10 HL

Cas 26 at 39; 11 ER 934 at 939 and the principle that a solicitor has a fiduciary duty to his client

goes back well before that time.

[5350] Identification of fiduciary duties

The New Zealand Court of Appeal in Armitage v Paynter Constructioti Ltd [19991 2 NZLR 534 at 543,

observed that "[the broad designation of a relationship as 'fiduciary' does not in itself assist to identify

the duties which arise or the nature and content of those duties" and the court referred to the statement

of Frankfurter J in Securities and Exchange Commission v Chenery Corp (1943) 318 US 80 that the

characterisation of a relationship as fiduciary "only begins analysis".

The New South Wales Court of Appeal in Beach Petroleum NL v Abbott Tout Russell Kennedy (1999)

48 NSWLR 1 at 45; 33 ACSR 1 at 43; BC9907249; [1999] NSWCA 408 at [1881 also adopted the

observation of Frankfurter J and observed that:

Even in the case of a solicitor client relationship, long accepted as a status based fiduciary

relationship, the duty is not derived from the status. As in all such cases, the duty is derived from

what the solicitor undertakes, or is deemed to have undertaken, to do in the particular circumstances.

In Armitage v Paynter Construction Ltd, above, a firm of solicitors who were found to have acted for

both parties to a joint venture in receiving the proceeds from land sales on behalf of the venture,

preferred the interest of one party by continuing to favour it with payments from sales to the detriment

of the other party. The court said at NZLR 543 that the solicitors had "obligations of loyalty and good

faith" to both parties and they could not knowingly advance the interests of one party at the expense of

the other. The solicitors owed the same fiduciary duties to each party. They were required to "serve

each as faithfully and loyally as if [the party] were [the solicitors'] only principal". (The words quoted

are from the judgment of Millett LJ in Bristol and West Building Society v Mothew (tlas Stapley & Co)

[19981 Ch 1; [19971 2 WLR 436; [1996] 4 All ER 698 quoted in the judgment of Thomas J in

Armitage at NZLR 544 and see [5215].)

[5355] Summary

The following points may be made, in summary, in respect of the fiduciary duties of a solicitor within

the relationship of solicitor and client:

The relationship of solicitor and client is traditionally a status-based fiduciary relationship.

Its essential elements requiring loyalty of service and fair and honest dealing mark it as

one of particular trust and confidence in he conventional terms. Finn comments (at p 10

of his article noted in [5335]) that the special treatment given by the law to fiduciary

relationships "is informed in some measure by considerations of public policy aimed at

preserving the integrity and utility of these relationships, given the expectation that the


68

community is considered to have of behaviour in them, and given the purposes they serve

in society."

The fiduciary duty of undivided loyalty requires a solicitor to avoid any conflict between

the duty owed to a client and any other duty or interest including, in particular, the

solicitor's own interest.

The nature and extent of the particular fiduciary duties or obligations undertaken by a

solicitor (which duty among "a spectrum of duties ... comes into focus", per Thomas J

Armitage v Paynter Construction Ltd [1999] 2 NZLR 534 at 543) will depend on, or be

derived from, the circumstances of a particular case.


[2460] Clark Boyce v Mouat - fiduciary duty and retainer (see [5230] Riley 2000)

Mrs Mouat took action in the High Court of New Zealand against her formers solicitors, Clark Boyce,

alleging breaches of their contract of retainer and of the duty of care owed to her by the firm, as well as

for the breach of the firm's fiduciary obligation, arising from a transaction in which the firm had acted

for her and her son. She had provided security, in the form of a mortgage, over her home, to secure a

loan which was made to her son by a finance company.

At the time of these events she was a 72 year old widow and her son, a chartered accountant of 45

years, was also a management consultant. He sought a loan of $100,000 to meet business and other

expenses.

His solicitor, a family friend, declined to act and following that refusal Mr Mouat asked Mr Boyce of

Clark Boyce to act for him and his mother on the financial transaction, which was then completed.

Mr Mouat's business declined and he became bankrupt. His mother was then left with the liability to

repay the principal sum and arrears of interest secured by the mortgage over her home.

She took proceedings against Clark Boyce in the High Court which were unsuccessful. However the

Court of Appeal allowed an appeal and remitted the case to the High Court for determination of

damages and contributory negligence and contribution. Ultimately an appeal was made by Clark Boyce

to the Privy Council: Clark Boyce v Mouat (1993) 3 WLR 1021.

In its judgment the Privy Council noted that Mr Boyce had pointed out to Mrs Mouat that her position

as mortgagor providing the security was substantially different to that of her son and he advised her to

obtain independent legal advice. She also signed an acknowledgment which Mr Boyce prepared to the

effect that he had advised her of the legal implications and effects arising from the mortgage. Mrs

Mouat confirmed all of these facts.

In the Court of Appeal Jauncey L stated -

"There is no general rule of law to the effect that a solicitor should never act for both parties

in a transaction where their interests may conflict. Rather it is the position that he may act

provided that he has obtained the informed consent of both to his acting. Informed consent

means consent given in the knowledge that there is conflict between the parties and that as a

result the solicitor may be disabled from disclosing to each party the full knowledge which he

possesses as to the transaction or may be disabled from giving advice to one party which

conflicts with the interests of the other. If the parties are content to proceed upon this basis the

solicitor may properly act."


69

Solicitors'/advocates' immunity: See notes for Topic 4. Giannarelli's case is cited as clear grounds for a solicitors’/advocates’ immunity. The major reasons being given that it -

provides protection against the relitigation of cases already decided;

provides solicitor/advocates with the right to be treated in the same manner as judges, jurors and witnesses in proceedings, in terms of protection from civil litigation resulting from their actions;

provides a buffer against the fear that potential negligence actions will make advocates overly cautious in the conduct of proceedings; and

provides solicitor/advocates with a shield against the pressure to put their obligations to their clients before their obligations to the court.


[2780] Solicitor appearing as an advocate in court - immunity from action in negligence

The leading case of Hedley Byrne & Co Ltd v Heller & Partners (1964) AC 465, established the

principle that a person or persons holding themselves out as having specialist professional knowledge,

could be held accountable in negligence for the advice which they gave and upon which their clients

relied.

In Rondel v Worsley (1969) 1 AC 191 the House of Lords held that a barrister was immune from any

action for professional negligence relating to acts or omissions in the conduct of criminal proceedings.

However, on public policy grounds the House of Lords also held that a barrister could not be immune

from prosecution, for negligence, involving matters that were unconnected to cases in court.

In these matters the Lords held that barristers were required to exercise the ordinary care and skill that

any other professional was required to take. This view caused a restatement of barrister's immunity.

As stated in Saif Ali v Sydney Mitchell & Co (1980) AC 198 -

"Previously an important if not the main reason for the immunity was supposed to lie in the

fact that a barrister could not sue for his fees: this reason, if valid, would of course have

thrown a blanket of immunity over all barristers' actions, in or out of court, whatever their

nature. This House, however, in 1967 took the inevitable view that this reason no longer

applied: liability for negligence might exist in the absence of a contract for reward.

Nevertheless the immunity was held to exist on grounds, essentially, of public policy; mainly

upon the ground that a barrister owes a duty to the court as well as to his client and should not

be inhibited, through fear of an action by his client, from performing it; partly upon the

undesirability of relitigation as between barrister and client of what was litigated between the

client and his opponent. This necessarily involved a removal of the total blanket immunity and

a restriction of it to such cases as might fall within the area of public policy."

[2785] Pre-trial acts or omissions (see [15410] in Riley 2000)

In Saif Ali, the court had to decide whether the barrister's general immunity should cover pre-trial acts

or omissions relating to the conduct of civil proceedings brought by a lay client.

It was confirmed that -

"(the pre-trial work to which the immunity might extend should only enjoy that protection)

where the particular work is so intimately connected with the conduct of the cause in court


70

that it can fairly be said to be a preliminary decision affecting the way that cause is to be

conducted when it comes to a hearing. The protection should not be given any wider

application than is absolutely necessary in the interests of the administration of justice."

Lord Wilberforce, in arriving at this view, took note of the fact that many trials only take place after

interlocutory or pre-trial proceedings. In those proceedings similar decisions might have to be made as

those at trial.

He said -

"(it would be) illogical and unfair to give the latter protection and the others none."

The following additional propositions were also advanced -

"(a) in principle, those who undertake to give skilled advice are under a duty to use

reasonable care and skill. The immunity as regards litigation is an exception from

this and applies only in the area to which it extends. Outside that area, the normal

rule must apply;

(b) .... the same immunity attaches to a solicitor acting as an advocate in court as

attaches to a barrister;

(c) the rule of immunity is quite distinct from the question (of) what defences may be

available to a barrister when he is sued. It by no means follows that if an error takes

place outside this immunity area, a liability in negligence arises."

[2795] The High Court appeal (see [15425] in Riley 2000)

In a 4:3 majority, the High Court, after a further appeal (Giannarelli v Wraith (1988) 81 ALR 417),

dismissed the further appeal, holding that s10(2) of the Legal Profession Practice Act 1958 (Vic), did

not impose liability upon an advocate, and that the negligence complained of fell within the common

law immunity and public policy considerations identified in Rondel and Saif Ali.

Mason CJ noted that -

"(the) peculiar feature of counsel's responsibility is that he owes a duty to the court as well as

to his client. His duty to his client is subject to his overriding duty to the court."

Two principal aspects of public policy are identified as relevant to this view, they are -

(1) the dependence of the administration of justice in an adversarial system upon the

faithful exercise by barristers of an independent judgment in the conduct and

management of a case; and

(2) the need to preserve the administration of justice from "collateral attack by means of

actions against counsel for in-court negligence."

As Mason further stated -

The reasons for holding that a barrister is not under a duty of care apply with equal force to

the solicitor who acts as an advocate ..... It is the function performed, not the label attached,

which gives rise to the limited immunity."

[2805] Out of court work - connection with work done in court (see [15430] in Riley 2000)

In Keefe v Marks (1989) 16 NSWLR 713, a solicitor, having compromised his client's claim for

negligence, arising from the failure to claim interest in an action for damages caused through a personal


71

injury, claimed contribution or indemnity from a barrister, who he briefed to 'advise and appear' in the

proceedings.

Mahoney DCJ struck out the statement of claim, issued by the solicitor in the District Court, as not

disclosing a reasonable cause of action in negligence.

The solicitor appealed to the Court of Appeal and Gleeson CJ noted that -

"whilst it was pleaded that the barrister was briefed to 'advise and appear', it had been

acknowledged by counsel for the claimant that the references to advice concerned advice on

the preparation and conduct of the proceedings."

It was not argued that the barrister had been asked to consider the form of the statement of claim,

however it was noted that -

"although it was undoubtedly part of his duty as counsel retained on behalf of (the plaintiff) to

conduct the (plaintiff's) action, to address his mind to the adequacy of the pleadings as a

vehicle for propounding a claim for whatever his client's rights might be."

It was found that although the brief was titled "brief to advise and appear", it was not materially

different from a "brief on hearing". Specifically, the court held that the reference to "advising" and "the

conduct of pre-trial work" was included to attempt to overcome the immunity affirmed by the High

Court.

Gleeson CJ stated that the complaint against the barrister related to -

"having been briefed to act as counsel for (the plaintiff) in his action for damages for personal

injuries, he did not at any relevant time, either prior to the commencement of the hearing, or

during the hearing, direct his mind to the desirability of making on his client's behalf a claim

for interest or take the steps necessary to propound such a claim, that his neglect in this

regard produced the result that Master Greenwood failed to award interest and the Court of

Appeal declined to intervene."

Finally, the Chief Justice held that the claim was within the area of the immunity, as it represented work

done in court. Therefore, the court held that "the negligence alleged in the statement of claim did not

fall within the out of court immunity rule supported by the majority of the High Court in Giannarelli".

The retainer: Lawyers operate in a highly complex environment and often are not diligent in ensuring that their client's requirements are clearly documented and understood. The content of a retainer can often be implied, in order to deal with all relevant matters. Where a client does not expressly identify his/her requirements the lawyer may be vulnerable to a claim for negligence or failure of the implied terms of the contract. Regulation of solicitors: Law Society's Statement of Ethics:


[13580] Law Society's Statement of Ethics (see [150000] in Riley 2000)

On the 20th November 1994, the Law Society of New South Wales proclaimed a Statement of Ethics

applying to solicitors in New South Wales. It states -


72

"The law should protect the rights and freedoms of members of the community. The

administration of the law should be just. The lawyer practises law as an officer of the Court.

The lawyer's role is both to uphold the rule of law and serve the community in the

administration of justice.

In fulfilling this role, lawyers should:

Serve their client's interests competently

Communicate clearly with their clients

Treat people with respect

Act fairly, honestly and diligently in all dealings

Pursue an ideal of service that transcends self-interest

Work with their colleagues to uphold the integrity of the profession and

honourable standards and principles

Develop and maintain excellent professional skills

Act frankly and fairly in all dealings with the Courts

Be trustworthy

Keep the affairs of clients confidential, unless otherwise required by law

Maintain and defend the rights and liberty of the individual

Avoid any conflict of interest

In fulfilling this role, lawyers are not obliged to serve the client's interests alone, if to do so

would conflict with the duty which lawyers owe to the Court and to serving the ends of justice."

Control of unqualified persons: Legal Profession Uniform Law (NSW) [the Uniform Law] [ss 9-14] provides the scope and remedies to deal with persons who practice law without an appropriate practising certificate issued by one of the regulatory bodies. However, there is a modern shift towards the minimisation of lawyers’ involvement in a range of legal and quasi legal dealings, including conveyancing, appearances at tribunals etc. Investigation: Part 4.2, Division 4 of the Uniform Law, empowers the Law Society to appoint an Investigator to generally investigate or check the activities of a legal practice and to conduct specific investigations into the affairs of a solicitor or firm of solicitors. Trust accounts: Both the Uniform Law and the Legal Profession Uniform Law General Rules 2015 [the 2015 Rules] address the issues of trust accounts and controlled monies. Note the obligation in Section154 of the Uniform Law to report suspected irregularities in relation to trust monies. Receivers: The Law Society has the power to seek the appointment of a Receiver to a solicitor's practice - see Chapter 6, Part 6.5. Section 341 of the Uniform Law permits the Tribunal (NCAT) to appoint a Receiver to a solicitor's practice.


73

Manager: The appointment of a Manager by the Law Society is most likely to occur when a solicitor's practice cannot continue to operate due to incapacity, such as severe illness, death or other sudden event which means that the practice is either to be sold, wound up, or maintained until the solicitor is capable of resuming proper control of it. The provisions of Chapter 6, Parts 6.2 and 6.4 of the Uniform Law cover the likely events and the manner in which the Manager is to be appointed and execute his/her role. Issue of codes: best practice for client care, conveyancing: From time to time the Law Society issues a range of codes and advisory notes to Solicitors on activities that they should undertake in the best interests of both their clients and their practices. Solicitors and other lawyers: The fair and appropriate administration of justice requires that lawyers treat each other with fairness and honesty and that they do not impede the administration of justice in the name of tactics. They cannot just be hired guns, but owe higher obligations to each other in the conduct of their litigation and other activities. The Conduct Rules cover the responsibilities and obligations that solicitors have to other lawyers. Solicitors and third parties: The Conduct Rules address the responsibilities and obligations that solicitors owe to third parties. They particularly relate to the involvement of third parties in litigation and the obligations that a solicitor has in requiring the production of documents held by third parties. Solicitor's liability for acts of partner: In Re Mayes and the Legal Practitioners Act, Mayes was a practitioner in partnership with another practitioner who was responsible for significant defalcations on trust accounts. The practice operated from two locations and each partner was responsible for one office. In proceedings before the Tribunal and on appeal, it was argued that Mayes had breached his duties under ss 41 and 42 of the Act and the then regulations 3(2), 6A and 7(4) amounting to professional misconduct. The court stated that he was "recklessly careless over a long period of time and had failed to see that the requirements of the Legal Practitioners Act regarding trust accounts were met." As a member of a partnership he was equally responsible for making sure that all rules and regulations relating to the management of trust accounts were met. In Bridges v Law Society of New South Wales, Bridges was found guilty of professional misconduct and struck off, on the basis that he had knowledge of large amounts of trust money being used to bail out speculative property investments undertaken by the partnership. The activities took place for a long period of time and although Bridges had taken steps to monitor the activities, he had neither reported it to the Law Society nor actively engaged in correcting the problem and advising clients of the way in which their monies were being used. See Part 3.2 of the Uniform Law. Duty to report offences/bankruptcy

Additional general obligations were imposed on legal practitioners by amendments between 1997 and 2001. On 9 March 2001 the Attorney introduced a regulation with immediate effect being the Legal Profession Amendment (Notification) Regulation 2001 which defined offences and certain excluded offences and required that applications for practising certificates must contain prescribed information


74

including disclosure of bankruptcy or compositions with creditors and the commission of offences at any time for some and generally in the preceding 10 years or in the future. Students are now referred to the requirements set out in Section 51 onwards of the Uniform Law. In the press release advising of "Far reaching reforms for legal profession" issued on 7 March 2001, the Attorney indicated, in part, that amendments were proposed to the Legal Profession Act which will:-

Specify that bankruptcy falls within the definition of professional misconduct, which can lead to the practitioner being disciplined or struck off;

Provide that a practitioner who is declared bankrupt will be suspended and subsequently lose the right to practise if they are unable to show cause why he or she is still fit to practise;

Expand the powers of the Bar Council and Law Society Council to suspend or disbar a practitioner who fails to satisfactorily explain their conduct to the Council, whether or not the conduct is connected with the practice of law;

Enhance and strengthen the powers of the Legal Services Commissioner, the independent ombudsman for investigation of complaints against legal practitioners.

Obviously Harrison's case and Chamberlain's case and cognate issues are now in the political

arena.

See also:

Cameron v Bar Association of NSW [2002] NSWSC 191 (revised 25.03.2002)

Murphy v Bar Association of NSW [2001] NSWSC 1191 (unreported 21.12.2001)

NSW Bar Association v Cummins (2001) 52 NSWLR 279

NSW Bar Association v Somosi [2001] NSWSCA 285

Case Extracts:

***************************************************************************

Re MAYES and THE LEGAL PRACTITIONERS ACT [1974] 1 NSWLR 19

[The first excerpt is from the decision of Hardie JA, and the second from the joint judgment of Reynolds

and Hutley JJA. The Law Society at times appears to hold the view that this case is authority for the

proposition of strict liability and for defaults other than trust deficiencies. Such an approach is not

justified.]

The decision of the Committee was delivered on 5th April, 1973. After reviewing the relevant facts and

the circumstances relating to the formation and carrying on of the partnership between the appellant

solicitor and another solicitor, R. A. Cole, it dealt with the critical matter in the case, namely, the issue

as to what blame or responsibility should be attached to the solicitor by reason of the substantial

deficiencies in the trust account of the firm, the full nature and extent of which were first revealed to the

solicitor at the end of May and disclosed by him to the Law Society early in June 1972. It is quite clear

from the evidence before the committee and their decision, that the substantial defalcations, amounting

to over $180,000, were committed solely by the solicitor's partner, and that the solicitor derived no

benefit, profit or advantage from them. It is also clear that the solicitor in question had complete

confidence and trust in the honesty and integrity of his partner.


75

The critical matter for decision by the committee, and by this Court, this appeal being a rehearing, is

whether the solicitor, though not personally implicated in any dishonesty or breach of the criminal law,

acted over a period of time, or failed to act, in such a way as to constitute wilful breaches of the relevant

provisions of the Legal Practitioners Act which, by 5. 43 of that Act, are deemed to constitute

professional misconduct. It is beyond dispute that the solicitor over a period of years failed to comply

with the provisions of ss. 41 and 42 of the Act, and the issue is whether such a failure was wilful.

Counsel for the appellant solicitor challenged the findings against his client of professional misconduct,

and, in particular, submitted that the more specific findings were not justified on the evidence. His main

contention was that, although there were breaches of the relevant sections, they were not of such a

nature as to be correctly categorized as wilful within the meaning of S. 43. He stressed in particular that

his client had throughout relied completely upon his partner, to whom he had left all supervision of and

operations on the trust account and that the trust he placed in his partner negatived a finding of wilful

failure. It is true that the solicitor did have complete trust in his partner. However, in the special

circumstances of this case, I am satisfied that the existence of that trust was accompanied by a complete

indifference on the part of the solicitor as to the performance of his statutory obligations in relation to

the trust account. The matters brought to his notice over a period of years were such that failure to

inquire and ascertain what was happening in relation to the trust account was, under the circumstances,

recklessly careless and properly found to constitute wilful failure within the meaning of the section.

The committee found, in my view correctly, professional negligence against the solicitor. However, the

committee obviously took a sympathetic view of the matter, and the nature of the suspension, coupled

as it was with a stipulation contemplating the solicitor practising as an employee of another solicitor,

indicates the committee's confidence in the personal probity and character of the solicitor in question.

The solicitor has, undoubtedly, suffered substantially because of his partner's wrongful conduct.

However, the solicitor must bear some responsibility for completely abrogating his own responsibility

and leaving everything to his partner. The finding of professional negligence was, in my view, quite

correct and the order made against the solicitor was a salutary one giving effect to the interest of the

public in these matters and, at the same time, preserving for the solicitor an opportunity to re-establish

himself financially and professionally.

For the reasons stated I am of the opinion that the grounds relied upon by the appellant have not been

made out and accordingly that the appeal fails.

******************

p25 It is no answer for the appellant to claim that he left the conduct of the financial affairs of the firm

to his partner. It would be no answer generally and certainly not in this case where the appellant

neglected his responsibilities despite warnings that all was not well. Feelings of delicacy in the belief

that queries or checks might be regarded as offensive to the spirit of mutual trust between partners do

not, as claimed, excuse or justify an abdication of responsibility. Instances of defalcation by persons of

apparently excellent character are not unknown, and every solicitor should appreciate that there is some

risk involved if he allows one partner to be in the position of a sole practitioner so far as control of the

trust account is concerned. This is what the appellant did.

The extent to which each partner must concern himself with the financial controls in a partnership

necessarily varies with the size of the partnership and the office organization, but each has the


76

responsibility to see that there is in existence a proper system to which each has access to see that the

rules are being obeyed and to check the system. The existence of a system cannot relieve partners from

personal vigilance.

We entirely reject the argument that a solicitor who is in partnership can, without being guilty of

professional misconduct, simply leave the management of their joint trust account to his partner after he

has reason to be apprehensive as to his misuse of it, if it subsequently appears that this facilitated

misappropriation.

In our opinion the appellant was put on notice that there were happenings which called for his checking

of the office records and particularly the trust account. They were set out in the decision of the statutory

committee. We do not propose to go through them in detail. Each would have alerted any partner who

was not unconcerned to inquire what was really being done by his fellow partner.

***************************************************************************

BRIDGES v LAW SOCIETY OF NEW SOUTH WALES [1983] 2 NSWLR 361

[This appellant who conducted his own case before the court, was one of several partners in an old

established practice at Manly. They decided to become entrepreneurs and develop land at Mona Vale,

essentially using money borrowed by a company from clients. As in the Harvey situation things got out

of control and some of the partners decided to ‘trade out’ to their peril, as it turned out. Bridges was

not intimately involved in the trade out action but his striking off by the Statutory Committee (the

antecedent of the Tribunal) was confirmed by the Court of Appeal. The first excerpt is from the

judgment of Moffitt P and the second from Hutley JA.]

The appellant admittedly knew by late in 1977 that trust money of clients had been improperly used and

that in respect, in particular, of land in Parkland Road, Mona Vale, about $200,000 of trust money of

various clients had been improperly used in this project and that there was inadequate security. The

appellant admitted he knew the clients were not told the position at any time until he left the partnership

in December 1980. He did nothing to tell them. It is clear it was a deliberate decision in 1977 of the

partners assented to by him not to tell the clients what had occurred or the lack of proper security whilst

the firm traded out" of the difficulty, whatever the various partners believed that meant. The partners

were apparently unable or unwilling to meet the deficiency themselves.

Difficulty exists for this Court on appeal satisfactorily resolving the unresolved issue. It is not possible

to resolve the conflict between the direct testimony of the appellant, who claimed he did not know of

the further breaches of duty in the two years and that of some of the other partners, who contended the

appellant knew in substance what was going on. It should at least be said that the circumstantial

material in the case provides strong support for an inference that in the years allowed to elapse without

the security being realized, or the clients being paid out or being told, the appellant knew more than he

was prepared to concede. The inference is that he must have known, contrary to what he claims, that the

“trading out" operation over these years was being pursued by doing something more than merely

obtaining development approval and selling the land for what it would bring. Massive borrowings from

clients were passing through the firm's accounts for use in projects which provided inadequate security

for earlier clients' moneys. These dealings were apparent from the trust account and other records there

to be seen as of right and with not much effort. A substantial and prolonged building operation was

overtly taking place on the land in the district. The clients' money on this security had swelled from

$200,000 to $700,000, interest on former money used was being paid out of fresh borrowings and the


77

security for client borrowing was a single contributing mortgage in respect of the Parkland Road real

estate and was postponed to a mortgage to secure $100,000 borrowed from another source.

However, let it be assumed that the appellant, as claimed, did not know what was going on. What then?

If he did not know, it was because he did not attempt to take any one of a number of steps open which

he must have known would disclose what was happening.

Having regard to what he did know, at least from 1977, his failure to inform the clients, his lack of any

real attempt to find out, when he had the ready means to do so, and hence his allowing the impropriety

to continue, provides the basis for the finding of professional misconduct by the committee in respect of

this period, a conclusion which was clearly correct. That still leaves the question - why did he not

attempt to find out? This was a question which the appellant in argument, appearing in person, was

unable to answer satisfactorily. Indeed the concessions, which in the end he inevitably had to make in

argument, reveal the true significance of his not attempting to find out.

***************

[p366] It is clear in my view that, at a time when he knew that gross breaches of duty to clients had

been committed on a large scale, he was party to a trading out operation of some Sort and to clients not

being told what had been done or was being done, that he allowed this situation to continue for over two

years during which time he made and pursued a conscious decision not to check for himself and find

out what was being done and in particular whether past partnership wrongdoing was being aggravated

or added to and that his motive in so doing was to prefer and advance his own partnership interests, to

the interests of his clients and to do so on a basis that he could disclaim responsibility for wrongdoing in

the event of a failure of the trading out operation. If the clients and the Law Society were not told, as

they were deliberately not, and the trading out succeeded, the appellant would be there to accept the

benefits in a situation in which the known misconduct would be kept secret. If the trading out failed he

could not have but known that there would be an investigation in which the participation of all,

including himself, would come under scrutiny. It is clear that against that day he took the conscious

decision not to find out what was occurring lest his knowledge might be used to implicate him.

This case, and the appellant's part in it, serve to illustrate that when professional misconduct has

occurred it is a perilous even fatal course, even by an innocent partner, to embark on a course of

concealment and some kind of "trading out" operation. It is inevitable, at least in the end, that there will

be some participation by all in some sort of professional misconduct and most likely dishonesty and the

making of applications for practising certificates supported by some sort of false declaration.

The Statutory Committee did not resolve the question as to which version of the arrangements entered

into was the correct one and it did not expressly find the extent of the knowledge, if any, which the

appellant had of the mis-application of trust funds which took place after September 1977. As it was

able to come to the conclusion that, whichever version was accepted, the appellant should be struck off,

it was understandable that the Statutory Committee did not make express findings as to the credit of

each of the solicitor witnesses. The absence of this finding has, however, complicated this appeal, in

that the extent of the knowledge and participation of the appellant is relevant to the proper order which

should be made; indeed, the whole appeal is on the basis that the appellant should be differently treated

from his former partners because he only made errors of judgment.

On a wider basis, it is important that the Statutory Committee should make findings as to the integrity,

or lack of it, of a solicitor's evidence before it, because it must be assumed that in many cases after

some time a solicitor who has been struck off may wish to apply to the Law Society for permission to

work in a legal firm or to the court for readmission to the profession or for admission to the Bar. The


78

performance of a solicitor who has been guilty of professional misconduct in his practice after its

discovery, and the quality of the evidence of the solicitor before the Statutory Committee and in this

Court may be a highly relevant factor in determining the fitness of that solicitor to be permitted to work

in a legal firm or to be readmitted to the profession. I do not find it necessary finally to decide which of

the two versions is the more credible, and who is telling the truth about what was arranged, because I

am of the opinion that on any version the solicitor is unfit to remain a member of the profession, but if I

were forced to decide, I would be inclined to accept the frank confessions of wrongdoing of Messrs

Butler and Miller in preference to the evidence given by the appellant.

In my opinion, the appellant was required to make an actual check of the trust account records before

giving his certificate. He pointed out that any such obligation in very large firms would present an

impossible burden and with this I would not disagree. However, this firm was in a special position. To

his knowledge, gross breaches of the fiduciary duties had occurred. He had assurances from his partners

that there would be no more offending loans. He must have appreciated that it was his duty actively to

police that there were no more. He must have known that the firm could not, from its own resources,

sustain the burdens already incurred for interest and for the inevitable cost of development, even within

the limits which he envisaged, without obtaining outside money. A partner in a firm in this situation, in

my opinion, cannot absolve himself by saying that he obtained verbal assurances; he had to look.

***********

NEW SOUTH WALES BAR ASSOCIATION V CUMMINS (2001) 52 NSWLR 279

[283] 18. As Mason P said in Hamman:

“[85] I emphatically dispute the proposition that defrauding ‘the

Revenue’ for personal gain is of lesser seriousness than defrauding a

client, a member of the public or a corporation. The demonstrated

unfitness to be trusted in serious matters is identical. Each category of

‘victim’ is a juristic person whose rights to receive property are protected

by law, including the criminal law in the case of dishonest interception.

[284] ‘The Revenue’ may not have a human face, but neither does a

corporation. But behind each (in the final analysis) are human faces

who are ultimately worse off in consequence of fraud. Dishonest non-

disclosure of income also increases the burden on taxpayers generally

because rates of tax inevitably reflect effective collection levels. That

explains why there is no legal or moral distinction between defrauding

an individual and defrauding ‘the Revenue’.”

19. Honesty and integrity are important in many spheres of conduct. However, in some spheres

significant public interests are involved in the conduct of particular persons and the state regulates and

restricts those who are entitled to engage in those activities and acquire the privileges associated with a

particular status. The legal profession has long required the highest standards of integrity.

20. There are four interrelated interests involved. Clients must feel secure in confiding their secrets and

entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly

on the word and the behaviour of their colleagues. The judiciary must have confidence in those who

appear before the courts. The public must have confidence in the legal profession by reason of the

central role the profession plays in the administration of justice. Many aspects of the administration of

justice depend on the trust by the judiciary and/or the public in the performance of professional

obligations by professional people.

21. As Kitto J said in Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97

CLR 279 at 298:


79

“… the Bar is no ordinary profession or occupation. These are not

empty words, nor is it their purpose to express or encourage professional

pretensions. They should be understood as a reminder that a barrister is

more than his client’s confidant, adviser and advocate, and must

therefore possess more than honesty, learning and forensic ability. He

is, by virtue of a long tradition, in a relationship of intimate collaboration

with the judges, as well as with his fellow-members of the Bar, in the

high task of endeavouring to make successful the service of the law to

the community. That is a delicate relationship, and it carries exceptional

privileges and exceptional obligations. If a barrister is found to be, for

any reason, an unsuitable person to share in the enjoyment of those

privileges and in the effective discharge of those responsibilities, he is

not a fit and proper person to remain at the Bar.”

22. Even in a period where other values have become of significance to the regulation of the legal

profession - I refer particularly to the application of competition principles in professional regulation -

the traditional professional paradigm still has a vitality of abiding significance. Neither the relationship

of trust between a legal practitioner on the one hand, and his or her clients, colleagues and the judiciary

on the other hand, nor public confidence in the profession, can be established or maintained, without

professional regulation and enforcement.

23. The most recent amendments to the scheme of professional regulation contained in the Legal

Profession Amendment (Disciplinary Provisions) Act 2001 affirm this long standing tradition, by the

introduction of detailed provisions for review of conduct by legal practitioners involving acts of

bankruptcy, indictable offences and tax offences. Although this new legislation is not directly

applicable to the present case, it does manifest the continued vitality of the professional tradition.

[285] 24. In a case such as the present, where there is no substantive contest as to the ultimate operative

order which the Court should make, it is of particular significance that the Court should record its

findings. As Kirby P said in The Prothonotary of the Supreme Court of New South Wales v Ritchard

(NSWCA, 31 July 1987, unreported):

“For the ordinary case, the Court has adopted the principle that,

normally, it will state its findings on the totality of the matters put

forward as constituting professional misconduct, so that these will be

available to be dealt with, should they ever become relevant to any

future application by the former solicitor for readmission to practise.”

His Honour referred to The Law Society of New South Wales v Seymour (NSWCA, 14 April 1982,

unreported) and Bridges v Law Society of New South Wales [1983] 2 NSWLR 361 at 362.

25. Kirby P went on to say in Ritchard:

“Although the opinion must be reached that the offences warrant at the

time of order permanent removal, the removal of a solicitor from the

Roll is not necessarily intended to be permanent in fact. See Ex parte

Evatt; Re New South Wales Bar Association (1971) 71 SR (NSW) 153,

157. People can redeem themselves and demonstrate it by later conduct

as a number of cases in this State, both of solicitors and barristers, show.

Because that opinion may give encouragement, in due course of time, to

an application to be readmitted, it is all the more important that the

unfortunate saga of the opponent’s misdeeds should be collected and

found by the Court.”


80

7. Misconduct and unsatisfactory professional conduct

Misconduct/unsatisfactory professional conduct Inclusive Uniform Law 296 Unsatisfactory professional conduct For the purposes of this Law, "unsatisfactory professional conduct" includes conduct of a lawyer occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. 297 Professional misconduct

(1) For the purposes of this Law, "professional misconduct" includes-- (a) unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and (b) conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice.

(2) For the purpose of deciding whether a lawyer is or is not a fit and proper person to engage in legal practice as referred to in subsection (1)(b), regard may be had to the matters that would be considered if the lawyer were an applicant for admission to the Australian legal profession or for the grant or renewal of an Australian practising certificate and any other relevant matters.

298 Conduct capable of constituting unsatisfactory professional conduct or professional misconduct Without limitation, the following conduct is capable of constituting unsatisfactory professional conduct or professional misconduct--

(a) conduct consisting of a contravention of this Law, whether or not-- (i) the contravention is an offence or punishable by way of a pecuniary penalty order; or (ii) the person has been convicted of an offence in relation to the contravention; or (iii) a pecuniary penalty order has been made against the person under Part 9.7 in relation to the contravention;

(b) conduct consisting of a contravention of the Uniform Rules; (c) conduct involving contravention of the Legal Profession Uniform Law Act of this jurisdiction (other than this Law), whether or not the person has been convicted of an offence in relation to the contravention; (d) charging more than a fair and reasonable amount for legal costs in connection with the practice of law; (e) conduct in respect of which there is a conviction for--

(i) a serious offence; or (ii) a tax offence; or (iii) an offence involving dishonesty;

(f) conduct as or in becoming an insolvent under administration; (g) conduct in becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act; (h) conduct consisting of a failure to comply with the requirements of a notice under this Law or the Uniform Rules; (i) conduct in failing to comply with an order of the designated tribunal made under this Law or an order of a corresponding authority made under a corresponding law (including but not


81

limited to a failure to pay wholly or partly a fine imposed under this Law or a corresponding law); (j) conduct in failing to comply with a compensation order made under this Chapter.

Common law In Allinson v General Council of Medical Education and Registration, the major complaint related to the form and content of advertising of Allinson's medical practice and comments made about the quality and competence of the medical profession, generally, contained within those advertisements. The Council resolved that -

the charge was proven;

the offence was infamous; and

the practitioner's name should be removed from the register of medical practitioners. Although the decision was challenged, including the composition of the Council members adjudicating the matter, the court held that the Council was correct in its determination. In Kennedy v The Council of the Incorporated Law Institute of New South Wales, on appeal to the High Court, from a charge of misconduct, the court noted that the offence complained of need not fit within any legal definition of wrong doing, nor amount to an offence at law. The court considered that there would be sufficient cause if it amounted to grave impropriety, which materially affected the professional character of the practitioner, resulting in a failure to apply the precepts of honesty or fair dealings. In supporting its decision, the court held that the actions of the solicitor must be viewed in the full context of his behaviour, where he attempted to tamper with the evidence of a witness as part of an overall case strategy to which he had become indiscriminately committed. In Qidwai v Brown, Qidwai appealed from a decision of the Medical Board, where he was found guilty of professional misconduct and reprimanded. The matter arose from the appellant's performance of an appendectomy on a patient, in his consulting rooms, on a day-stay basis, and, whether this could be characterised as professional misconduct. The Tribunal found that it did. On appeal the court held that misconduct was not established. There was no breach of the expected standard of medical care required, or conclusive evidence that competent and reputable practitioners would find the appellant's actions improper or worthy of reprobation. The key was the minority but 'respectable' opinion evidence called by Dr Qidwai. Conduct otherwise than in connection with the practice of law, s297(1)(b) S297(1)(b), of the Uniform Law states that professional misconduct includes -

(b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice."

Again, there are may subjective words contained within this definition. The section provides fertile ground for analysis.


82

Ignorance alone can be sufficient Where a solicitor fails in his/her fiduciary duties of due care and diligence in circumstances where they should have known or accounted for the potential for conflict, professional misconduct may be proved. In Law Society of New South Wales v Moulton the solicitor involved had business dealings with a client, whilst that person was still a client. The issue of concern was the apparent conflict between the interests of the client and the personal interests of the solicitor. Wilfulness In Re Hodgekiss, which was an appeal under s78 of the Legal Practitioners Act 1898-1954, from an order of the Statutory Committee that resulted in the practitioner being struck off, the appellant petitioned for the rehearing of the charges. The allegations related to the management of a substantial trust account, involving in excess of two million pounds. The Law Institute ultimately addressed three charges amounting to professional misconduct, including -

wilful failure to comply with ss41 and 42 of the Legal Practitioners Act 1898-1954;

failure to comply with the Solicitor's Trust Account Regulations 1945; and

falsely certifying (for a period of three consecutive years) compliance with ss 41 and 42 when applying for the renewal of a practising certificate.

The Institute appointed an auditor to the solicitor's accounts who found a number of small discrepancies in individual accounts that the solicitor and his staff were working through to rectify. There was no inference of dishonesty, simply mistakes or minor discrepancies in the handling of individual accounts. However, the auditors looked less favourably upon the solicitor's contention that he did not deposit funds from his general account to deal with the aggregate of the differences. In his defence he contended that he was owed sufficient funds from the trust account for costs on various matters, though he had not yet received authority to withdraw his costs from any account. The charge of wilfulness was supported by evidence that transfers from the trust account, which were in excess of credit held, were made for a group of companies for whom the solicitor acted. As well as, the evidence that he had certified compliance with ss41 and 42 for the three consecutive years for which discrepancies could be traced.


83

Case extracts:

***************************************************************************

ALLINSON v GENERAL COUNCIL OF MEDICAL EDUCATION AND REGISTRATION

[1894] 1 QB 750

[This case has probably been used more than any device or basis for finding professional misconduct.

Its potency arises from the introductory words to §127 LPA which use the word ‘includes’ thereby

incorporating the common law of which this is the seminal case. The English Court of Appeal had to

consider the effect and meaning of the language of the enabling act which used the words “infamous

conduct in a professional respect”. A large part of the judgments concerns another ground relating to

a perceived conflict of interest of one of the members of the council. The classic definition appears on

p763 in the judgment of Lopes LJ.]

It was proved before the defendant council that the plaintiff had been in the habit of inserting

advertisements in newspapers, in which his name and address were stated. These advertisements

contained reflections upon medical men generally and their methods of treating their patients, and

advised the public to have nothing to do with them or their drugs. The advertisements contained a

series of answers to real or imaginary correspondents as to the proper treatment of different complaints,

and there were recommendations to apply to the plaintiff for advice, the amount of the fee charged by

him for advice being stated. Certain works on medical subjects written by the plaintiff were also

mentioned, and their prices.

*****************

[p 763] Then I come to the question of "infamous conduct in a professional respect," and, in my

opinion, if there was any evidence on which the council could reasonably have come to the conclusion

to which they did come, their decision is final. If' on the other hand, there was no evidence upon which

they could reasonably arrive at that conclusion, then their decision can be reviewed by this Court. 'It is

important to consider what is meant by "infamous conduct in a professional respect." The Master of the

Rolls has adopted a definition which, with his assistance and that of my brother Davey, I prepared. 'I

will read it again: "If it is shown that a medical man, in the pursuit of his profession, has done

something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his

professional brethren of good repute and competency," then it is open to the General Medical Council

to say that he has been guilty of " infamous conduct in a professional respect." That is at any rate

evidence of "infamous conduct" within the meaning of s.29. I do not propound it as an exhaustive

definition; but I think it is strictly and properly applicable to the present case. Assuming it to be a

definition of "infamous conduct" sufficient for the purpose of the present case, was there any evidence

before the Medical Council which justified them in coming to the conclusion that the plaintiff had been

guilty of infamous conduct in a professional respect within that definition? It appears to me that there

was abundant evidence upon which they might find as they did.

***************************************************************************

KENNEDY v THE COUNCIL OF THE INCORPORATED LAW INSTITUTE OF NEW

SOUTH WALES (1939) 13 ALJ 563

[The published report is a summary of the High Court justices’ judgments. The excerpt below comes

from Rich J. Justice Dixon followed the Allinson formula. The vice in this case was an attempt to have

a witness vary her evidence to increase the chances of success for the widow claimant for whom the

solicitor/appellant acted. McTiernan J said in his judgment:-

• ...... “a solicitor for a party in an action was not at liberty to employ whatever tactics might

contribute to his client’s success”.

“As a solicitor he had an additional and particular responsibility. His professional status, which he

derived from being accredited by the court as a fit and proper person to practise, laid upon him the

strict obligation not to interfere with the course of administration of justice under any pretext”.]


84

The High Court dismissed the appeal.

RICH, J., said that a charge of misconduct as relating to a solicitor need not fall within any legal

definition of wrong doing. It need not amount to an offence under the law. It was enough that it

amounted to grave impropriety affecting his professional character and was indicative of a failure either

to understand or to practise the precepts of honesty or fair dealing in relation to the courts, his clients or

the public. The particular transaction the subject of the charge must be judged as a whole and the

conclusion whether it betokened unfitness to be held out by the court as a member of a profession in

whom confidence could be placed, or on the other hand, although a lapse from propriety, was not

inconsistent with general professional fitness and habitual adherence to moral standards, was to be

reached by a general survey of the whole transaction. The appellant’s enterprise, said His Honour, was

part of a campaign to win the case, a campaign in the course of which, His Honour noticed, two other

witnesses for the defence were talked to. The appellant was engaged in a course of aggressive

interference with the ordinary course of calling evidence on behalf of the defendant whose case had

already been entered upon. He clearly strove to influence a witness in what she would say and did so in

an improper manner. In His Honour’s opinion, the appellant was interfering with the ordinary course of

justice and in all the circumstances showed that his misconduct manifested a definite unfitness to be

trusted to discharge the duties of a solicitor, particularly in relation to the court.

***************************************************************************

QIDWAI v BROWN [1984] 1 NSWLR 100

[Dr Qidwai was reprimanded by the medical tribunal for conducting an appendectomy in a day surgery

facility. He was an experienced surgeon. The short excerpt is from the judgment of Hutley JA, and

related to the finding of professional misconduct in the face of a “respectable, though minority,

opinion”. The finding and reprimand were reversed on appeal.]

The respondent sought to find support in witnesses called for the appellant and his anaesthetist, Dr

Sundaraj, who was also before the tribunal but acquitted. Dr Fisk, a distinguished anaesthetist, after

expressing the opinion that whether or not to perform an appendectomy on a day-stay basis was the

prerogative of a surgically skilled doctor, went on to say it was a procedure he would not like to

perform. Dr Holland, another distinguished anaesthetist, gave a written statement that under conditions

which were in this case fulfilled, appendectomy is suitable for day-stay procedure. Under cross

examination, he explained he was speaking as an anaesthetist, but this does not, in my opinion, weaken

his testimony. The surgeon and the anaesthetist are cooperating in the one operation, and have

complementary appreciations of the difficulties of operations. The evidence of expert and independent

anaesthetists is, in my opinion, sufficient to establish that there is a respectable, though minority, view

that such operations, in the circumstances existing in respect of this operation, are acceptable. Where

this exists, it cannot be said that the one who acts on the minority view is guilty of professional

misconduct. There is the further fact that other countries with medical standards not incompatible with

those recognized in this country, ie, the United Kingdom and Malaysia, accept day-stay

appendectomies.

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JOHN BOLSTER V. LAW SOCIETY OF NEW SOUTH WALES COURT OF APPEAL: Moffit,

P., Hope J.A., Samuels J.A., 20th September 1982

[This and the case of Meagher are the prime examples of how ignorance of one’s responsibilities and

the law and practice affecting solicitors can be sufficient to enable the tribunal to find not only

misconduct, but unfitness to remain on the roll. The issue of three special bulletins after Harvey’s

case should have caused the solicitor to better appreciate his fiduciary duties. He did not, to his peril.

The case also exemplifies that in cases of breach of fiduciary duties the fact that no client or affected

party suffered any loss, does not ‘save’ the solicitor.]


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JUDGMENT

MOFFITT, P.: John Bolster (the solicitor) appeals against an order made by the Statutory Committee on

10th June, 1982 that his name be removed from the Roll of Solicitors.

The matter of substance alleged and found against the solicitor concerned conduct over a long period of

time in which he mixed his own affairs with those of his clients, principally by his participation, as their

solicitor, in the lending by them of their money to a finance company in which he had an interest and

which then made advances to himself and his family and companies in which he or they had an interest.

He acted as solicitor for these clients in these transactions without making a full and proper disclosure

of his interest and without advising his clients to take independent legal advice.

Most of the basic facts were or at least now are not in dispute. The solicitor concedes his conduct in the

foregoing respect was improper, but submits it was not unprofessional, as the Committee found. He

submits that in circumstances asserted by him and claimed by him to be relevant this conduct did not

warrant the order made. Substantially his claim is that after certain matter published in a Law Society

Journal came to his notice in early 1979, so that he became aware that his conduct in the investment of

clients' moneys, so they were used for his benefit, was contrary to what appeared in the Journal, no

further lending in the same fashion of clients' moneys occurred, that about two years later, by the time

the proceedings before the Committee were pending, all clients’ moneys so lent had been repaid, that no

client lost any money, that the transactions were not unfair to clients and that clients' investments were

not at risk because he was a very wealthy man and his ventures were financially secure. This first

awareness asserted to arise from reading the Law Society publication, happened to be at about the time

or just before a Law Society inspector visited his practice in June 1979 and later made the report which

led to these proceedings.

His case encounters some difficulty when it is sought to determine precisely to what his claimed lack of

awareness extends. The solicitor has practised as a sole practitioner for thirty years. He had been

engaged over many years in substantial business ventures of complexity, involving some millions of

dollars. He had handled in total very large sums of money on behalf of many clients. Since 1960 he has

been engaged in the running of a finance company dealing in total with some millions of dollars here

and in Queensland. The more his case based on claims of ignorance is pressed in defence of him, as it

has been in respect of the period up to 1979 and to some degree thereafter, to the point where the

ignorance is of the elementary but critically important obligations of a solicitor and person in a position

of trust in relation to his clients, the more his case establishes that he has such a lack of appreciation of

his duty as a solicitor that he is unfit to be such. [N.S.W. Bar Association V. Evatt (1968)117 C.L.R.

177 at 184; The Law Society of N.S.W. V. Moulton (1981)2 NSWLR 736]. In so far as his case cannot

be pressed that far, so he did have the understanding of these elementary matters that one would expect

of a solicitor, particularly one of thirty years standing, then he is left in the position that he must have

knowingly disregarded these standards in order to serve his own financial interests by large sums of

moneys of his clients being made available for his ventures, by such moneys being advanced to the

finance company and then by it to him, his family and his companies without security at either step so

that he as a borrower had a reservoir of money without being put to the expense of meeting the cost of

providing proper securities or having the inconvenience and restriction of securities upon his assets or

affairs.

The case made by the Law Society called for an explanation from the solicitor. His case was that he

dealt with his clients fairly. However, all he said in support of that case was that the interest rates were

fair and that he repaid the moneys at the end of the term and that in respect of money at call he repaid it

when demanded. He did not suggest that he gave advice to them as to the terms of any proposed loan,

although, as the extract of evidence earlier quoted shows, he did advise some clients at least directly to

lend to Border. He did not suggest, for example, that he gave advice as to whether it was in the interests

of the particular client that the money be advanced on call and not for a term which would have

attracted a higher rate of interest or whether it should be left on call without escalation of the rate to

meet changes in inflation and interest rates generally. He did not advise clients to require security or a


86

guarantee. These observations, of course, only serve to illustrate the wrong position in which a solicitor

places himself by participating in such transactions with clients who rely upon him for advice.

What admittedly occurred places the solicitor in the dilemma earlier stated. Either he lacked the most

elementary knowledge and understanding of his duty as a solicitor or, being aware of it, he disregarded

it because clients' money provided a convenient source of finance for his own ventures. Many decisions

of this Court in recent years, some of which were referred to in the Committee's judgment make it clear

that the solicitor's case is quite untenable, whatever way it be put and whatever be the precise

conclusion proper to be come to as to the state of awareness of the solicitor of his duty as a solicitor

prior to 1979 and in the period from early 1979 to mid-1981 and thereafter until and including the

hearing before the Committee. [Law Society of N.S.W. V. Harvey (1976) 2 N.S.W.L.R. 154: Law

Society of N.S.W. V. Starky, C.A., 13th August, 1979, unreported: Law Society of N.S.W. V. Moulton

(1981) 2 N.S.W.L.R. 736]. It is not necessary to quote the passages in those cases which apply to the

present case and demonstrate that the claims of the solicitor still pressed on appeal in this Court are

untenable. Harvey's case laid down no new law. The decisions and views expressed in that case do not

depend on some prior pronouncement of the Court of Appeal or some directive bulletin from the Law

Society or a solicitor having knowledge of them. A solicitor cannot justify failure to perform his duty to

his clients, including that not to intermingle his affairs with theirs, by a claim that he was ignorant of

Harvey's decision or the elementary principles there stated or that he misunderstood or was unaware of

the many warnings to solicitors by the Law Society in its publications since Harvey's case. A claim such

as the solicitor makes, even if fully accepted, is a confession of ignorance of his fundamental duty as a

solicitor and hence of his unfitness to be a solicitor. Any solicitor should acquaint himself concerning

his duty as a solicitor. There is no excuse at all for not doing so for a solicitor so long in practice as the

solicitor in the present case, who has had such extensive financial dealings. A breach of duty does not

cease to be such because the solicitor is ignorant of his duty. Lack of awareness that what he does is

misconduct does not make it otherwise.

Again, referring to prior authority, the fact that the solicitor did not act fraudulently or

that clients did not lose money does not prevent the solicitor being found guilty of

professional misconduct. The circumstance that he was wealthy and that the nett value of his assets

in the form of real estate and other company ventures was said to be some millions of dollars (in this

case said to be some six million dollars) does not alter the circumstance that clients, at times directly on

his advice, made unsecured advances to a finance company without any guarantee and without

independent advice and did so in circumstances where the solicitor was in serious breach of his duty to

his clients. His answer that he was very wealthy and that if anything went wrong with the finance

company he would not have seen a client lose, although the client did not have a security or personal

guarantee from him, provides no answer. True it is that no client in fact lost his capital and that the risk

of that occurring was small. However, even the wealthy at times fail financially. Paper valuations of

nett wealth, even those running into large figures sometimes fail to meet those figures under some

economic pressures. Finance companies, particularly those which lend 80% of their money without

security, are far from free of risk of failure. Apart from this, for reasons which earlier appear, I am quite

unpersuaded by the case sought to be made by the solicitor, in mitigation of the misconduct which he

expressly admitted, that the advances were in terms which the clients would have accepted, if they had

had independent advice.

The conclusion to be drawn from this part of the case alone, without making a determination as to the

credibility of the solicitor's claim of ignorance earlier referred to, is that the solicitor was guilty of a

sustained course of conduct deliberately embarked on and pursued for his own advantage which was

professional misconduct and which rendered and renders him unfit to be a solicitor.

The solicitor's claims of ignorance and as to his state of mind at various times up to the date of hearing

before the Committee and his attitude as to what occurred is such that this appeal should not be

disposed of without some observations being made and conclusions being stated concerning them.

On any view the solicitor's claims as to the nature and extent of his ignorance of matters relevant to his

duly as a solicitor prior to 1979 is obscure and his evidence concerning it not very satisfactory. His

claimed limited understanding of the Law Society's warning or advice of about April 1979, which


87

repeated earlier matter circulated to solicitors arising out of this court's decision in Harvey's case, and

his limited reaction to this publication, including his continued use of clients' money for a further two

years, throws serious doubt upon his claims of ignorance and that throughout, in whatever was done, he

served the best interests of his clients.

It should be added to what was earlier said that in my view the professional misconduct of the solicitor

up to 1979 was aggravated by his failure to terminate the conflict of interest until two years later and his

failure after April 1979 to remedy his claimed ignorance of his duty as a solicitor and in the meantime

taking the advantage to him of the use of clients' moneys, so avoiding for two years the ''considerable

cost to himself of having to secure finance for his ventures in the manner required by a responsible

lender, no doubt pursuant to sound financial and legal advice or policy.

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Re HODGEKISS [1962] SR (NSW) 340

[This case gave us the definition of “wilful”. In using or applying this term in the context of

professional misconduct, it is quite incorrect to state that conduct can only be misconduct if wilful. For

instance, grossly overcharging or borrowing from clients are objectively considered without any regard

for the practitioner’s state of mind - see Bolster’s case. Wilfulness has already been seen in the context

of contempt, where it is relevant. In the context of misconduct it arises in relation to breaches of the

trust account sections 61-64.LPA. The first excerpt is from Owen J and the second more important one

from Hardie J. To appreciate the significance of the decision, one has to know that at the time all

solicitors had to certify annually that they had complied with all sections of the act relating to trust

moneys. The solicitor in this case made no special checks but honestly believed that at the time his

account was in order. Objectively he was shown to be wrong. The court found that the matter was

properly referred but it reversed the finding of professional misconduct made by the Statutory

Committee.]

At the time it was given the appellant knew that there were deficiencies in what I have called the

individual trust accounts. It was submitted that for a solicitor to give a false certificate in order to obtain

a practising certificate amounts to professional misconduct and with that I entirely agree. It would be

dishonourable and disgraceful conduct. If it had been proved that the appellant had wilfully breached

s.41 or s.42 it would necessarily have followed that the certificate in question was false, that is to say,

untrue to his knowledge. But if, as I think, no wilful breach of either of those sections was proved, the

case assumes a different aspect. It is neither disgraceful nor dishonourable for a person, be he a solicitor

or not, to give a certificate which is in fact untrue if the giver of it honestly believes it to be true,

although perhaps a person who gives an untrue certificate believing it to be true but without any

reasonable grounds for that belief, may be said in some circumstances to have acted disgracefully or

dishonourably. As I have stated earlier I am not satisfied that, if the appellant had committed breaches

of ss. 41 or 42 he knew or believed that he had done so.

********************

The meaning of the phrase "wilful failure" in s.43 does not appear hitherto to have been dealt with in

any decision of this Court. Assistance is provided, however, by reported decisions dealing with similar

phrases and particularly by the decision of Romer J. and the Court of Appeal in re City Equitable Fire

Insurance Co. Ltd. In that case the question for decision was the meaning of the phrase "wilful neglect

or default" in a provision in the articles of association of the company limiting the liability of directors

for loss suffered by the company by reason of the exercise of - their powers and duties. Romer J.

reviewed a number of earlier decisions dealing with the phrases "wilful default" and "wilful

misconduct" in contracts of sale and other instruments, and then proceeded : .... . the difficulty is not so

much in ascertaining the meaning of the adjective 'wilful', as in ascertaining precisely what is the noun

to which the adjective is to be applied. An act... is wilful where the person ... knows what he is doing

and intends to do what he is doing. But if that act or omission amounts to a breach of his duty, and

therefore to negligence, is the person guilty of wilful negligence? In my opinion that question must be

answered in the negative unless he knows he is committing, and intends to commit, a breach of his duty,

or is recklessly careless in the sense of not caring whether his act or omission is or is not a breach of


88

duty". In the Court of Appeal Pollock M.R. adopted as the definition of wilful misconduct that given by

Lord Alverstone some years earlier, and based upon an extract from a judgment in an Irish case, to this

effect: "Wilful misconduct..... means misconduct to which the will is party as contradistinguished from

accident and is far beyond any negligence, even gross or culpable negligence, and involves that a

person wilfully misconducts himself who knows and appreciates that it is wrong conduct on his part in

the existing circumstances to do, or to fail or omit to do (as the case may be), a particular thing, and yet

intentionally does, or fails or omits to do it, or persists in the act, failure or omission regardless of

consequences . . . or acts with reckless carelessness, not caring what the results of his carelessness may

be". Warrington L.J. and Sargant L.J adopted the test laid down and applied by Romer J.

In In re Vickery Maugham J. (as he then was) treated the definition of "wilful neglect or default" as laid

down by Romer J. and the Court of Appeal in the case abovementioned as applicable to the

determination of the meaning of that phrase in certain provisions of the Trustee Act 1925; in his

judgment Maugham J. restated the principle thus: . .. a person is not guilty of wilful neglect or default

unless he is conscious that, in doing the act which is complained of or in omitting to do the act which it

is said he ought to have done, he is committing a breach of his duty, or is recklessly careless whether it

is a breach of his duty or not". See also Transport Commission(Tas.) v. Neale Edwards Pty. Ltd., Royal,

Victorian Aero Club v. The Commonwealth), Dalrymple v. Melville.

In the cases cited in which the principle stated above has been applied, the duty which was the subject

of consideration was not a statutory one but a duty arising under contract or out of a fiduciary

relationship. In the instant case the duty of the solicitor to his client is based upon a contractual and

fiduciary relationship. Upon that relationship and duty the legislature has superimposed express

statutory duties. Breaches of those duties are not made an offence punishable summarily, as are

breaches of other sections of the Act. The sanction or penalty provided by the Act is the exposure of the

solicitor concerned to the disciplinary and punitive powers of the Court and of the Statutory Committee

in the event of the provisions being breached and such breach or breaches being wilful, and to the

exercise by the Institute of its power to cancel or to refuse to renew the solicitor's practising certificate,

whether it would seem the breaches be wilful or not.

The fact that the duties which form the subject matter of s.43 are statutory does not render inappropriate

or inapplicable the principles laid down in the cases already cited for the determination of the question

as to whether there has been "wilful failure" on the part of the solicitor to comply with s.41 or s.42.

Applying those principles, I am of opinion that the section deals with personal breaches of the statutory

provisions in question on occasions when the solicitor knew or believed that he was committing such

breaches or was recklessly careless in that regard. It is thus essential in an inquiry as to whether or not

there have been wilful breaches by a solicitor of the provisions of ss. 41 and 42 to examine the facts and

circumstances relevant to his state of mind, knowledge and intention at the material dates.

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89

8. The disciplinary apparatus

Standard of proof The requisite standard in disciplinary proceedings is that as spoken of in Briginshaw v Briginshaw - that is, one of comfortable satisfaction. The onus of proof in such proceedings falls on the party making the allegation(s) - see Re Evatt: ex parte New South Wales Bar Association. Standard - Fitness to remain on the Roll The Court of Appeal, when hearing an appeal from the Tribunal, is not bound by the tribunal's view on the evidence presented, nor what it considers the required standards of practice by a legal practitioner. Because the proceedings are not adversarial in nature the onus of proof may shift from the professional association to the legal practitioner in question. As argued by Disney, the court can "reformulate or add charges that the lawyer has to answer and the lawyer's response to them become(s) part of the criteria for disciplinary action." In Law Society of New South Wales v Foreman, the Tribunal found that Foreman had falsified timesheets, used to charge a client for work performed in Family Law proceedings. It also found that she concealed the original timesheet from the Family Law Court. In the Tribunal she was only fined, primarily on the basis of character witnesses and the Tribunal's acceptance of previous good character, and "impressive support from her peers." The Law Society appealed this decision; and, the Court of Appeal in a 2 -1 decision, ruled that she be struck off. In the Law Society's appeal the Court held that the fine imposed by the Tribunal was insufficient and that the only proper course of action, on the basis of the evidence presented, was that the practitioner be struck off. It held the view that there was a systematic pattern of deception and persistent unprofessional activities, amounting to professional misconduct. Although dissenting, Kirby in his opinion noted that the evidence proved a pattern of client billing which could be characterised as gross overcharging, and which evidenced a culture of overcharging by Ms Foreman's former employers. Nature of Disciplinary Proceedings Ross states -

Although most jurisdictions have developed definitions for breaches of the standards, the common law definitions have either been basically adopted or have not been abrogated and still have relevance. The definitions fall into three categories: serious breaches; breaches falling short of the highest category; and breaches of etiquette or written rules between members of the profession.

The courts have applied these definitions equally to the actions of both barristers and solicitors. The loss of the right to practice generally results in a loss of status and income. A lesser reprimand can also result in a substantial fine and an award of costs being made against the practitioner concerned. In Macken, for example, an action brought by the Law Institute of Victoria, the Institute's costs were $150,000, with the cost for the provision of a transcript being $19,000, before the practitioner's own costs were factored in. In Harvey v Law Society of New South Wales (1975) 7 ALR 227; proceedings were brought, in the Supreme Court of New South Wales, by the Law Society of New South Wales. The Society requested that the practitioner be struck off for professional misconduct, resulting from dealings involving companies within which he had a financial interest and the commingling of the funds of clients from his legal practice with those enterprises. The Supreme Court granted the Society's application and attached a number of specific requirements to the order. These included that the practitioner never


90

practice as a solicitor again, that he not be employed as a solicitor or in any other role where he would be advising clients on legal issues. Further, the Society was directed to contact all former clients, who were to be invited to seek independent legal advice where they might proceed with independent actions. An appeal was lodged, from the judgment of the Supreme Court, to the High Court requesting that the orders be varied (1975) 49 ALJR 362 at 364. In its decision the High Court made minor variations to the orders, however, it did not substantially vary their substance in terms of the extent to which the practitioner was barred from continued or future legal practice. Variation was permitted as some orders went further than was required in, and to protect, the public interest. In Clyne v The New South Wales Bar Association (1960) 104 CLR 186, the High Court expressed the view that it was bound to protect the public. It was also required to protect the reputation and privileges of the balance of the profession. The High Court distinguished between what was serious and less serious misconduct; and struck Clyne off for abuse of his advocacy privileges, including for lying to a judge who had relied on him for "fundamental information"; and for deliberate misrepresentation of the law. No unilateral right to have name removed from Roll In Leaver and Legal Practitioners Act (1966) 83 WN (pt 1) (NSW) 278, the Court held that a solicitor does not have an absolute right to seek the removal of his/her own name from the roll of solicitors. The Law Society opposed the application. The facts included that there were impending proceedings against the solicitor, before the Statutory Committee, which the applicant was potentially seeking to avoid. Court's inherent jurisdiction State Supreme Courts' generally exercise the disciplinary powers, which are assumed to be reciprocal to the power to admit legal practitioners. This right is preserved in statute in all jurisdictions except Western Australia. The Supreme Courts, along with their concurrent jurisdictions, may act as appellate courts from decisions of the tribunals. Except in rare cases the High Court has accepted that disciplinary decisions have an inherent state basis. In Clyne's case, for example, the High Court held that it would only interfere in state decisions where there was/is a compelling case to do so. Most often that is where its failure to intervene would bring the legal profession and the justice system into disrepute. Section 264 of the Uniform Law notes the inherent jurisdiction of the Supreme Court:

“(1) The inherent jurisdiction and powers of the Supreme Court with respect to the control and discipline of Australian lawyers are not affected by anything in this Chapter, and extend to Australian legal practitioners whose home jurisdiction is this jurisdiction and to other Australian legal practitioners engaged in legal practice in this jurisdiction. (2) Nothing in this Chapter is intended to affect the jurisdiction and powers of another Supreme Court with respect to the control and discipline of Australian lawyers or Australian legal practitioners.”

In Myers v Elman (1940) AC 282, the House of Lords used its inherent powers to order costs against lawyers because it considered the lawyer's actions to have evidenced "negligence of a serious character." Lord Wright indicated that a criminal act was not necessary for the court to discipline a legal practitioner.

The matter complained of need not be criminal. It need not involve speculation or dishonesty. A mere mistake or error of judgment is not generally sufficient, but a gross neglect or inaccuracy in a matter that it is a solicitor's duty to ascertain with accuracy may suffice.

In Weaver v Law Society of New South Wales (1979) 142 CLR 201, the doctrine of estoppel was found not to apply where a disciplinary tribunal dismissed charges; and a court, exercising its inherent


91

jurisdiction brought subsequent charges. The argument being whether an investigation could take place in the Court after the earlier dismissal of charges of professional misconduct by the Statutory Committee. Mason J stated that -

Disciplinary proceedings under the Legal Practitioners Act 1898 (NSW) and in the exercise of the Supreme Court's inherent jurisdiction are not criminal proceedings, they are proceedings sui generis. When the court is called upon to examine the conduct of solicitors as officers of the court it is as much concerned to protect the public from misconduct on the part of solicitors as it is to ensure that issues already determined are not unnecessarily re-litigated. The court cannot disable itself from hearing and determining the very serious complaint against a solicitor that he has given false evidence merely because the complaint may or will involve the re-litigation of allegations of earlier misconduct of which the solicitor has previously been found not guilty.

In Chamberlain v ACT Law Society (1993) 118 ALR 54 at 58, 59, the ACT Law Society brought charges of professional misconduct, in the Supreme Court of the ACT on the grounds that the practitioner had "induced another to act on a mistake" to his "own advantage". The charges relating to the practitioner's failure to advise the Australian Taxation Office of a clerical error which mistakenly assessed his tax liability at $25,557.92 instead of $255,579.20. In a 2 -1 decision the court suspended him from practice for six months and made a costs order against him. On appeal to the Federal Court the finding of professional misconduct was upheld, however it lowered the penalty from suspension to a reprimand on the basis that the charge of misconduct was "at the lower end of the scale"; and an isolated incident which was generally out of character. On a more practical level see the Court's power to award costs personally against a solicitor. Conduct of proceedings A court is entitled to seek and receive assistance to conduct proceedings relating to the admission or disciplining of legal practitioners, providing that there is no breach of procedural fairness. In Wentworth v New South Wales Bar Association (1992) 176 CLR 239 at 250-251, an appeal to the High Court against the refusal to admit an applicant to the New South Wales bar, Brennan J stated -

"In admission and disciplinary proceedings, the procedure is entirely in the hands of the court, subject only to statutory directions and the requirement of procedural fairness.... The court is entitled to seek and receive assistance from such persons as (are) capable of providing it."

In relation to the Supreme Court's decision to grant leave to the Bar Association to join the proceedings, amicus curae, he held that -

"I do not find in s51(b) of the Legal Practitioners Act any express or implied inhibition against the Supreme Court's practice of granting leave to the Bar Association to appear to assist the Court in admission and disciplinary proceedings".

Court may depart from complainant's approach In Law Society of New South Wales v Bannister (1993) 4 LPDR 24 at 30, the Tribunal ordered that a solicitor was guilty of professional misconduct for withdrawing costs from an award of the Compensation Court, in the amount of $3,000. In the same matter the solicitor had sought costs from the client's employer. The Tribunal found the solicitor guilty of professional misconduct; and, imposed a fine of $10,000. The Law Society appealed on the basis that his name should have been removed from the Roll. The appeal was allowed, however, the approach which may be adopted by the Court must afford the legal practitioner procedural fairness - see: Smith v New South Wales Bar Association (No.2) (1992) 66 AJLR 605.


92

Complaints Part 5.2 of the Uniform Law provides the procedures for making complaints about lawyers and their investigation. See from Section 266 onwards. Investigation of complaints Part 5.2, Division 2 onwards of the Uniform Law deal with the processes for assessment/investigation and determination of complaints. Ethical rulings and assistance Legal practitioners are often faced, in their day to day work, with compromises between meeting their client's demands to get the job done and the potential for ethical dilemmas that may ultimately lead to disciplinary actions. Riley, (at para 3205) considered the decision in Fraser's case, which had an impact on decisions within the Tribunal in cases alleging similar misconduct. The matters involved related to the provision of false certificates. In Dimitrios v Gikas Dry Cleaning Pty Limited, Mahoney J found that the solicitor had acted with poor judgment, rather than through motives of greed or personal gain. Instead, he decided, that he was more likely motivated by the need for expediency. Barristers can seek an ethical ruling from any member of the Council of the Bar Association. The professional associations have specific schemes to assist legal practitioners in dealing with the dilemmas that may arise. The Law Society's Senior Solicitors Scheme is designed to provide practitioners with local support in terms of assistance to resolve ethical or practice dilemmas that arise in their day-to-day activities. A liaison officer is provided at the Law Society, as well as Ethics Officers to deal with questions involving ethical considerations. Practice directions and other guiding materials are published to address a specific issue or practice direction.


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NSW Civil and Administrative Tribunal (Occupational Division) Section 302 of the Uniform Act deals with the Orders which the designated Tribunal may make in disciplinary proceedings. See also the Civil and Administrative Tribunal Act, 2013. Obligations of practitioners to assist enquiry - candour See previous section: Investigation of complaints In Malfanti LPDR 4 of 1993, the applicant had been a practising solicitor, with an unblemished record, for some 26 years, when the Law Society lodged a complaint to the Tribunal, alleging professional misconduct in relation to a number of matters, including -

deliberately misleading his clients, the Society, the investigator appointed by the Society, and the firm of Hunt and Hunt, over the purchase of shares;

that there were discrepancies in his trust accounts;

that he had intermingled his funds with those of his clients; and

that he had failed to obtain adequate security, from one client, for the monies of other clients which the solicitor loaned.

After its examination of the evidence the Tribunal dismissed the majority of the charges but did find irregularities in the solicitor's trust account. As a result the solicitor was fined $12,000 and ordered to pay the Society's costs on a solicitor/client basis. The solicitor appealed the orders and the cost's determination. The court reexamined the evidence and found considerable inadequacies in the Law Society's case and the evidence presented. On this basis it determined that the Tribunal had erred in its assessment and set aside the orders of the Tribunal and dismissed the complaint. The Law Society was ordered to pay the costs of the solicitor's appeal and two-thirds of his costs before the Tribunal. In Re: Vernon: ex parte Law Society of New South Wales (1966) 84 WN (Pt 2)(NSW) 136 at 141-142, the matters complained about, by the Law Society, were clearly evidenced by a large number of affidavits made by affected clients. The solicitor attempted to thwart the Society's efforts in conducting the proceedings. The court held that all practitioners owed a duty of honesty in the conduct of disciplinary proceedings, and were required to assist in the investigation of complaints because of the special nature of the relationship of trust that legal practitioners hold with their clients. In New South Wales Bar Association v Liversey (1982) 2 NSWLR 237, as a result of giving a false declaration in disciplinary proceedings, the barrister was given a higher penalty and was struck off the roll. In O'Reilly v Law Society of New South Wales (1988) 24 NSWLR 204 at 230-231, the distinction between a failure to cooperate with disciplinary proceedings and a deliberate intention to lie about the circumstances of an offence were examined. And, in Smith v New South Wales Bar Association (No.2) (1992) 66 ALJR 605, a barrister was originally struck off the Roll, by the Court of Appeal, for providing untruthful evidence in disciplinary proceedings against him. The matter was the subject of a number of appeals to the Court of Appeal and ultimately was reversed on yet another appeal to the High Court. Riley, para 35840, deals with a solicitor's response to disciplinary proceedings, citing Re: Vernon, Walsh, Johns and Thomas.

http://www.ncat.nsw.gov.au/

http://www.legislation.nsw.gov.au/summarize/inforce/s/1/?xref=RecordType%3DACTTOC%20AND%20Year%3D1997%20AND%20Actno%3D76&nohits=y


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Case extracts:

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Re EVATT: ex parte NEW SOUTH WALES BAR ASSOCIATION [1967] SR (NSW) 236

[This was a joint judgment of the Court of Appeal in its inherent jurisdiction. It is included because of

the court’s expressions concerning the duties of counsel and the process of investigating misconduct.

Of particular concern to the court were the actions of the barrister in performing work normally done

by a solicitor. See now the definitions of “barristers work” and the manner and terms within which a

barrister may now be directly briefed by a party without the “intervention of a solicitor” in the Bar

Rules. The parallel case dealing with the solicitor involved, whose striking off was also confined in Re

Vernon.]

The onus of proof is upon the association but is according to the civil onus. Hence proof in these

proceedings of misconduct has only to be made upon a balance of probabilities: Reijek V. McElroy (1).

Reference in the authorities to the clarity of the proof required where so serious a matter as the

misconduct (as here alleged) of a member of the Bar is to be found, is an acknowledgement that the

degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the

fact to be proved: Briginshaw V. Briginshaw (2) per Dixon J., as he then was; Helton v. Allen (3); Smith

Bros.v.Modden Bros. (4) per Dixon J. In the joint judgment of the High Court in Reifek v. McElroy (5)

the following passage appears: “But the standard of proof to be applied in a case and the relationship

between the degree of persuasion of the mind according to the balance of probabilities and the gravity

or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused. The

difference between the criminal standard of proof and the civil standard of proof is no mere matter of

words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil

case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such

a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon

a criminal charge: see Helton v. Allen (6) per Dixon, Evatt and McTiernan JJ."

********************

The charges of misconduct alleged on the part of the respondent as a barrister are that between 1st

February, 1963, and 30th August, 1965, he knowingly was a party to, in that he actively assisted in and

facilitated, a systematic course of action whereby the two above-named solicitors charged extortionate

and grossly excessive costs as costs to lay clients. The notice of motion further charges that “acting as

aforesaid he (the respondent) charged fees as counsel which were excessive and which he knew would

be paid in part from the amounts so charged by the solicitors". The latter charge is more correctly

viewed as depending on and ancillary to the charge firstly formulated and the two must be read in

conjunction, for it is not part of the case of the association that the charging of excessive counsel's fees

by the respondent is, per se and standing alone, misconduct.

The principles by which this Court is to be guided when considering a question of misconduct of a

barrister are often stated in general terms but are clear and well settled: "The duties and privileges of

advocacy are such that, for their proper exercise and effective performance, counsel must command the

personal confidence, not only of lay and professional clients, but of other members of the Bar and of

judges "per Dixon J., as he then was, in In re Davis (9).

****************

[p 244] We have considered carefully the part played by the respondent in these actions. We are

convinced that his was the hand that guided and directed the details. His advices on evidence were more

in the nature of a solicitor's instructions to his clerks. In the later stages these were on prepared forms

with details filed in by the respondent's secretary from matter dictated by the respondent. The detailed

nature of these is illuminating, telephone numbers, names and addresses of witnesses and other details

being supplied. We do not doubt the efficiency of this system but these documents show that it was the

respondent who directed the procedures and progress of the case and not the solicitor, the actual work

detailed in the advices being carried out by clerks. Both the solicitors carried on practice as sole

solicitors without the assistance of qualified persons. The respondent obtained and kept himself


95

informed at all stages of the details of the cases and knew, as we find, that the part taken by the solicitor

was minimal. No member of the Bar, with the experience which the respondent had in 1963 to 1965,

could have been unaware of the fact that the deductions already referred to for profit costs over and

above the party and party costs had not been legitimately earned and were unjustified. They were, and

we are convinced that the respondent knew this, merely arbitrary figures taken out of the verdicts based

upon the circumstances that they were generous settlements and obtained without any contribution by

the clients, in other words, a sharing of unexpected affluence with persons of modest means.

*******************

[p 247]The memoranda of fees includes charges for advice on evidence, conferences and on briefs to

advice on evidence at various stages of the case or for settling particulars or the like. We are not

disposed to set these out in greater detail, but we have carefully examined the memoranda of fees and

are of the firm opinion that they are such as could not be justified by the work done or the degree of

responsibility undertaken. It was, we believe, known to the respondent that they would not be paid by

the defendants' insurers in the party and party costs, so that the largest proportion would come out of the

plaintiffs' verdicts, for the most part these being people of modest means, to say the least of it. They

were fees that he knew would not be allowed by a court taxing officer. The brief fees were appropriate

to a member of the Inner Bar and not recognized by the Bar as a whole or by reputable solicitors as

applicable to junior counsel.

We are forced to conclude that the fees represented indirectly a share of the verdict and were charged

on the footing that the plaintiffs, liberally treated in the matter of damages by the respondent's own and

the solicitors' efforts, had contributed nothing to the costs fees or charges of the litigation and were in

every case agreeable to pay the sums deducted from the verdict. Moreover, the solicitors paid the

excessive fees without demur and with a degree of regularity that evidences actual or tacit agreement to

recognize them. In two cases (Austin and Juroczko) the solicitor, in paying the respondent without

regard to the exact sum of the fees charged, paid the balance in his trust account to the respondent. This

sheds some light on the common bond relationship existing between counsel and solicitor. In one case

(Valbusa), although the bill was taxed in the court, the fees charged by the respondent apparently

remain unpaid.

***************************************************************************

LAW SOCIETY OF NEW SOUTH WALES v WALSH Unrep Dec 97

[This case is significant because it is one of the few examples of the application of §127(1) (b) of the

LPA, where the solicitor was appointed attorney under power by his mother which power he abused

and after her death he was a joint executor. The offences occurred otherwise than in the practise of

law. This case also exemplifies how the mighty can fall. Walsh was formerly a Law Society councillor,

regional law society president and an arbitrator. Two excerpts are included. The bulk of the factual

material appears in the judgment of Powell JA, from which the first material comes. The second, larger

portion is from Beazley JA. Note that Walsh successfully appealed to the High Court due to the

amendment to the Act: s171F. The principles dealt with are still indicative of law and practice.]

POWELL JA In all the circumstances, it seems to me that the Respondent's conduct marks him out as

one who, as the Tribunal found, was not of good fame and character and as one who - despite the

observations of the Tribunal on the question - is not fit to remain upon the roll of practitioners.

Although I accept that the phrases not of good fame and character" and "not ... fit ... to remain on the

roll of legal practitioners" are not synonymous - for a person who is of good fame and character may be

so lacking in competence as not to be a fit and proper person to remain on the roll of legal practitioners

(see ~Wentworth v. NSW Bar Association ") - it seems to me that' if one is found to be not of good

fame and character, one is not a fit and proper person to remain on the roll of legal practitioners. As the

Tribunal in the course of its decision (AB 306) pointed out, s.11 of the Legal Profession Act 1987

provides that a candidate for admission as a legal practitioner, however qualified in other respects, must

not be admitted as a legal practitioner unless the Legal Practitioners Admission Board is satisfied that


96

the candidate is of good fame and character; and s.11 of the Act provides that, unless the Legal

Practitioners Admission Board declares that it is satisfied that the candidate is of good fame and

character, it must refuse to approve the application for admission. ~ therefore, the legislature has

provided that persons who are not of good fame and character should not be admitted as legal

practitioners it would seem to follow, almost inevitably, that persons who are found not to be of good

fame and character should not be permitted to remain on the roll of legal practitioners (see for example,

Bannister v. Walton; McBride v Walton)

In the light of the matters which I have recorded above, I have concluded that the orders made by the

Tribunal were inappropriate and that the appropriate Order to have been made was an order for the

removal of the Respondent's name from the roll of legal practitioners.

******************

BEAZLEY JA:

It is undisputed that disciplinary proceedings are concerned with the protection of the public:

Wentworth V New South Wales Bar Association (1992) 176 CLR239 per Deane, Dawson, Toohey, and

Gaudron JJ at 251; Clyne V New South Wales Bar Association (1960) 104 CLR 186 at 201-202; New

South Wales Bar Association V Evatt (1986)117 CLR 177 at 183-184; Weaver v Law Society of New

South Wales (1979)142 CLR 201 at 207; and Walter v Council of Queensland Law Society Inc (1988)

62 QLR 153 at 157. The court's duty to protect the public is not confined to the protection of the public

against further misconduct by the particular practitioner who is the subject of the disciplinary

proceedings. It extends to protecting the public from similar defaults by other practitioners. Thus, it is

relevant to take into account the effect the order will have upon the understanding in the profession and

amongst the public of the standard of behaviour required of solicitors. In this sense, any penalty

imposed should contain an element of general deterrence, "publicly marking the seriousness of what the

instant solicitor has done “Foreman per Mahoney JA at 441; see also 444.

This wider notion of protection of the public involves the Court ensuring that the high standards which

are demanded of members of the profession are maintained. As this Court said in Harvey v The Law

Society of New South Wales (1975) 49 ALR 362 at 364:

"The function of a Court called upon to consider an application to remove the name of a

practitioner from a roll of practitioners is to examine the material proffered to it in order to

determine whether that material establishes that the solicitor has failed, by action or inaction,

to maintain in. his conduct the standards required of him as a member of the profession the

Court ‘s duty is to ensure that those standards of the profession are fully maintained

particularly in relation to the proper relationship of practitioner with practitioner, practitioner

with the Court and practitioner with the members of the public who find need to use the

services of the profession It is no part of that function to punish the solicitor whose conduct the

Court finds to be in breach of those professional standards”.

The same point had earlier been made in Ex parte Macaulay (1930)30 SR NSW) 193 by Street CJ, who

stated at 193-4:-

“unless the Court insists on a high standard of conduct on the part of solicitors - unless the

Court punishes severely every lapse from the proper standard - the public will never be

properly guarded and the profession will never retain the respect which it ought to have in the

community".

In Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at 297-298

Kitto J said that:-


97

"[t]he issue is whether the appellant is shown not to be a fit and proper person to be a member

of the Bar of New South Wales. It is not capable of more precise statement. The answer must

depend upon one's conception of the minimum standards demanded by a due recognition of the

peculiar position and functions of a practitioner)".

See also Clyne v New South Wales Bar Association at 188, 189.

In New South Wales Bar Association v Evatt, the High Court said at 184:

"The respondent’s failure to understand the error of his ways of itself demonstrates his

unfitness to belong to a profession where, in practice, the client must depend upon the as well

as the skill of his professional adviser"

The question of unfitness is not confined to a consideration of the conduct which is the subject of the

disciplinary charge. Additional factors may be relevant. A failure to be honest with the Court or with

fellow practitioners is one such consideration. In Incorporated Law Institute of New South Wales v

Meagher (1909) 9 CLR655, Isaacs J said at 681:-

"... if .... there be deliberate misleading, or recklessness of attention to necessary principles of

honesty on the part of those the Courts trust to prepare the essential materials for doing

justice, these 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 any person as worthy of public confidence who cannot

satisfactorily establish his right to that credential It is not a question of what he has suffered in

the past, it is a question of his worthiness and reliability for the future."

See also Higgins J at 691.

In Foreman, Mahoney JA said at 447:-

"A practitioner must not merely not deceive the court before which she practises; she must be

fully frank in what she does before it. This obligation takes precedence over the practitioner's

duty to her client, to other practitioners and to herself: Meek v Fleming [1961] 2 QB 366 at

382, 383. The justice system will not work if a practitioner is, for her own purposes, free to

put to the court that which she knows to be false."

Another relevant factor will be whether the practitioner truly understands the error of his or her ways.

Evatt's case, to which I have referred earlier, involved a barrister who did not know that it was wrong to

be a party to the organising of extortionate fees by a solicitor when the solicitor had the agreement of

his client to charge those fees. The High Court held, at 183, that:-

"The Supreme Court was... in error in not appreciating that its findings of misconduct

demonstrated the fitness of the respondent to be a barrister, and compelled the conclusion that

he should be disbarred"


98

The same principle, that a practitioner's failure to appreciate that the impugned conduct was wrong, was

applied to the case of a solicitor who claimed to be ignorant of his duty when using a client's money:

law Society of New South Wales v Moulton [1981] 2 NSWLR 736. Whilst a practitioner's expressed

intention not to re-offend is relevant to mitigation, it will have little weight unless accompanied by an

understanding of the wrongfulness of the conduct which was the subject of the disciplinary charge.

Mahoney JA dealt generally with the question of mitigation in Foreman at 444:

"In deciding whether a person is a fit and proper person for this purpose, the Court may, in

accordance with the circumstances, take into account matters going beyond the mere

protection of the public against similar misconduct. The Court may consider the character of

the practitioner, or those aspects of it relevant to the office of a solicitor. A solicitor may

affirm and sincerely believe that she will not offend again. But the character of the solicitor -

demonstrated by the offence or otherwise - may be such that no sufficient reliance can be

placed upon that affirmation”

His Honour returned to the question of character at 449, observing that "character is tested not by what

one does in good times but in bad". In arriving at questions of character the court may take into account

an assessment of a practitioner's credibility. Credibility may also be taken into account in seeking to

determine what a practitioner is apt to do in the future: see Bannister v Walton (1993) 30 NSWLR 600

at 723-729; Foreman at 450.

It is also relevant to take into account whether the conduct in question is "an isolated or passing

departure from proper professional standards amounting to something less than proved unfitness...

".Evatt at 183.

The various factors to which I have referred are but specific matters relevant to the central question

which confronts the Court in determining penalty, namely whether the solicitor is a fit and proper

person to be held out by the Court as such. The Court's order must therefore be directed to ensuring that

to the e::tent the practitioner is not the practitioner's practice is restricted: Foreman at 441 per Mahoney

JA.

This brings me to the two decisions relied upon by counsel for the appellant. In Law Society of New

South Wales V Bannister Sheller JA, with whom Gleeson CJ and Handley JA agreed, stated at 11:-

"The supervisory jurisdiction of the Court and of statutory bodies such as the Tribunal is

directed in part to ensuring that the requirement enshrined in the Charter of Justice that

persons admitted to practise as solicitors be fit and proper persons or, in the language of s16

of the Legal Profession Act 1987, of good fame and character is maintained It follows that if a

solicitor is shown not to be a fit and proper person he or she should be removed from the

roll”.

The Court further said at 12:-

“Retribution, a purpose of criminal punishment, is no part of the Court's purpose in making an

order against a solicitor in the exercise of its supervisory jurisdiction. The exercise of the

power to remove from the roll suspend or fine a solicitor is directed to protecting the public by

ensuring that those to practise do not continue to hold themselves out as fit to practise and


99

that high standards are maintained. The maintenance of such standards involves deterring the

offender from repeating the offence and deterring others who might be tempted to offend”.

*********************

[p 9] The principles, then, which should guide the Court, and, I should add, the Legal Services

Tribunal, in determining the appropriate penalty may be summarised shortly:-

• The Court's power is discretionary;

• Subject to considerations which would compel the Court to impose a lesser penalty, the

protective nature of the jurisdiction calls for the removal of a practitioner's name from the roll

when the practitioner has been found not to be of good fame and character;

• The subjective considerations which might compel a different course are ones which

themselves are relevant to and enhance the essential nature of the Court's jurisdiction, which is

the protection of the public. An example is where the legal practitioner has reported the subject

conduct to the Law Society or Bar Association. The relevance of mitigating conduct of that

type is that it encourages practitioners guilty of misconduct promptly to report it;

• In general, mitigating factors, such as evidence of a respected reputation, no previously found

misconduct or service to the profession "are of considerably less significance than in the

criminal sentencing process ": Law Society of New South Wales v Bannister at 13.

***************************************************************************

HARVEY v LAW SOCIETY OF NEW SOUTH WALES (1975) 7 ALR 227

[At first instance the Court of Appeal sitting in its inherent jurisdiction found that the solicitor had

failed in his fiduciary duty and intermingled his affairs with those of his clients. In general terms the

funds were borrowed by companies on a contributory mortgage basis and one of the companies ran

into development difficulties leading to a shortfall. Following this case the Law Society issued 3

Special Bulletins which were replaced as guidelines and now generally find themselves as Solicitors’

Rules. It was the failure to appreciate these warnings and basic duties that caused Bolster to be struck

off later. This case is the High Court’s response to an appeal to release some of the highly restrictive

orders of the Court of Appeal, and provides an explanation of the purpose and nature of the

jurisdiction. See Beazley JA in Walsh, where the protection/penalty issue is further analysed.]

The court saw fit to make these changes in the order of the Supreme Court because it was satisfied that

to the extent of those variations the orders as made went beyond what was necessary or desirable in the

circumstances to protect the interests of the public and of the appellant's clients as they might be

affected by the activities of the appellant in the past or for the future. The jurisdiction of a court called

upon to consider an application to remove the name of a practitioner from a roll of practitioners is to

examine the material proffered to it in order to determine whether that material establishes that the

solicitor has failed, by action or inaction, to maintain in his, conduct the standards required of him as a

member of the profession. The court's duty is to ensure that those standards of the profession are fully

maintained, particularly in relation to the proper relationship of practitioner with practitioner,

practitioner with the court and practitioner with the members of the public who find need to use the

services of the profession. It is no part of that function to punish the solicitor whose conduct the court

finds to be in breach of those professional standards.

In the present case I realize that some of the appellant's clients might be in need of independent advice,

though perhaps not conscious of that need. But, in my opinion, the orders made by the Supreme Court

which we have set aside or varied were not necessary nor, in my opinion, justified in order to protect the

public interest or the interest', of those clients. It was not appropriate, in my opinion, to assume that a

solicitor who was persuaded to purchase the appellant's practice "however honourable he might be" was

either incapable of or unwilling to afford the clients of that practice honest advice independently of the

appellant as to their rights, including their rights, if any, against the appellant. There was no material


100

before the court to suggest that the appellant was planning or intending to choose as a purchaser of his

practice a solicitor who, by reason of any arrangements with or persuasion by the appellant, was likely

to shelter the appellant from any exercise of any rights his former clients might have against him.

Nothing of the kind seems to have been suggested by the Law Society. Indeed, the orders, other than the

first three orders made by the Court, were not sought by the Law Society.

In my opinion, it was at least inappropriate for the Supreme Court to make the orders which it did make

in the terms which this court has varied or set aside. To prevent the sale by the appellant of his practice,

not only having regard to his own interest which he was entitled to endeavour to protect but having

regard to the interests of his creditors, was not only unnecessary for maintenance at the highest level of

the standards of the profession, but was in effect to impose a punishment of, or penalty upon, the

solicitor.

For these reasons, the orders of the Supreme Court were varied to enable the sale of the appellant's

practice to be completed and to leave the communication of the court's order to particular clients of the

appellant to the discretion of the Law Society in the terms of the order substituted by this court.

***************************************************************************

LAW SOCIETY OF NEW SOUTH WALES v WEAVER [1994] 1 NSWLR 271

[Consider where there were two partners and both were referred for disciplinary action and one

recognising what he thought was the inevitable did not contest the proceedings. The other tried to

displace his responsibility and was not struck off. The first partner learnt of his partner’s evidence and

conduct and had a quiet chat to the Law Society. It quite naturally thought that the matter should be re-

opened before the Court. Weaver did not think this was attractive and opposed this course on the

grounds of double jeopardy and otherwise. The following judgment was on the jurisdictional point.

Weaver lost the argument and the following hearing.]

The judgment of the court was delivered by Reynolds J.A.

REYNOLDS J.A. There is before us a summons issued by the Law Society of New South Wales

against a solicitor which seeks an order declaring whether or not the solicitor has been guilty of

professional misconduct and asks for an appropriate consequential order.

There has been argued before us a preliminary point, viz. that this Court, having regard to the

provisions of Pt. X of the Legal Practitioners Act, 1898, has no jurisdiction to entertain the summons.

This submission is based upon the fact that the solicitor in question has been dealt with by the Statutory

Committee established under Pt. X of the Act and there has been a decision made in his favour in

respect of the question of professional misconduct.

Section 79, which is found in Pt. X of the Act, is in the following terms -"Nothing in this Act contained

shall prejudice, diminish, or affect the jurisdiction, powers and authorities which are exercisable by the

Court over solicitors", ft has been submitted that its effect is to do no more than preserve the inherent

jurisdiction of the court and that the provision of a different tribunal in the earlier sections of the Part

has the effect, if a referral is made, or at any rate, if a decision is given by that tribunal, of ousting the

jurisdiction of this Court. It follows, under this submission, having regard to the decision of the court in

Re a Solicitor and the Legal Practitioners Act (1), that where a finding in favour of a solicitor is made,

this Court has no jurisdiction, either original or appellate.

It is a principle of statutory construction that a superior court of law will not be deprived of jurisdiction

except by express words or necessary implication. The provision of another tribunal would not of itself

ordinarily be sufficient to do so.

In this case, however, the matter is put beyond doubt by s.79. Its terms are wide and explicit. It plainly

means that the legislature was not substituting a tribunal with appropriate appellate rights. That, by its

very terms, it denies. Assuming that the events and conduct now relied upon to constitute professional


101

misconduct predated the hearing and finding of the Statutory Committee, or indeed, is the same conduct

as relied upon before the Statutory Committee, we are of opinion that this Court has jurisdiction to

entertain the summons now before it. Whether an answer is available in the nature of issue estoppel or

res judicata is another question.

The argument put to us based on issue estoppel and res judicata in support of the construction of Pt. X

contended for by counsel for the solicitor does not advance the main submission in our view.

It was pointed out during argument that the rules relating to issue estoppel and res judicata are rules

which prevent unfairness where there is jurisdiction. The possibility of some such rule having to be

invoked in an appropriate case, if this Court has concurrent jurisdiction in matters which go before the

Statutory Committee, in no way suggests the legislature must have intended to take away such

jurisdiction. As we have said, s.79 evidences an intention to leave the court's jurisdiction untouched.

Presumably the court was relied upon to exercise it appropriately.


102

9. Confidentiality and privilege

Confidential communications and privilege: The confidential communications, between a client and their legal adviser need not, in criminal and civil cases, be given in evidence or otherwise disclosed, without the client's consent. See Sections 118-126 of the Evidence Act 1995 – Commonwealth [see also NSW Act] In Grant v Downs (1976) 135 CLR 674, later appealed to the High Court (11 ALR 577 High Court of Australia), Grant was a patient admitted to North Ryde Psychiatric Centre, from where he escaped and later died of broncho-pneumonia. His widow sued the nominal defendant in the Supreme Court of New South Wales alleging a breach of duty of care. The defendant claimed privilege over information provided in depositions specifically relating to the internal investigations conducted by the Centre; and the Court upheld the claim to privilege. The widow appealed to the High Court, which referred to a sole purpose test of privilege, and the dominant purpose test outlined in the Commonwealth Evidence Act. The majority set aside the order of the Supreme Court and ordered the inspection of the documents on discovery. In Baker v Campbell (1983) 153 CLR 52, on appeal to the High Court (49 ALR 38 High Court of Australia), a member of the Federal Police Force attempted to seize documents, which were the subject of a search warrant, issued under s10 of the Crimes Act 1914. The documents had specifically been created for the purpose of providing legal advice. A client of the solicitor involved had kept the documents as a reference for a scheme of tax minimisation. The Court examined the issue of legal professional privilege over those documents. The majority of the Court found that the privilege was not confined to judicial and quasi-judicial proceedings, but, extended to search and seizure, allowing the solicitor to rely upon the privilege. In Nickmar v Preservatrice Skandia Insurance (1985) 3 NSWLR 44, the Court was asked to rule on a contested issue of privilege relating to evidence collected by the defendants to prove alleged insurance fraud on the part of the plaintiff. The documents were commissioned by the plaintiff to test this proposition. The Court held that all original documents involving advice about the circumstances of the fire and matters relating to the fire were privileged. Copies of documents were not accepted as privilege and a small number of documents that pre-dated the fire were also exempt from privilege. Privilege - compulsion of law: In the following case the major argument was whether the requirements of the Evidence Act governed or affected the common law principles that applied to the implied waiver of legal professional privilege. In Sevic v Roarty (1998) 44 NSWLR 287, it was held that a document which was entitled to the benefit of legal professional privilege, though filed and served on the direction of the Court in proceedings that were subject to Differential Case Management, did not lose their privileged status as a result of those directions. Sheller J held that disclosure of the privileged communication was made under "compulsion of law", within the meaning of s122(2)(c) of the Evidence Act 1995. Powell J held that waiver of the privilege could not be held because the documents were delivered pursuant to a court order. Qualifications on duty to the client: The Conduct Rules 2015 deal with confidentiality and acting against a former client, respectively. The confidentiality provision provides that during or after the termination of a retainer for services a solicitor may not disclose to anyone other than another member of their own firm, any information about their dealings with a client, unless -


103

the client authorises the disclosure;

the practitioner is compelled by law to do so; or

the disclosure would probably be compelled. The requirement is not limited to material to which legal professional privilege would attach. In A-G (NT) v Kearney (1985) 158 CLR 500, the Administrator of the Northern Territory, claimed privilege over documents relating to land in Darwin and Katherine, which gave rise to a dispute with the Northern Land Council. The Territory Government claimed privilege in the documents claiming they were only communications between officers of the government, whilst the Land Council asserted that they were sought to specifically defeat a land claim under the Aboriginal Land Rights (Northern Territory) Act 1976. The court held that the Council's case was made out, that the privilege was not designed to provide a means to defeat a land claim in this case, or for any other ulterior purpose. In O'Donovan v Vereker; O'Donovan v Forsyth (1987) 76 ALR, a barrister was prosecuted for the advice that he provided to a syndicate that sought to create a tax minimisation scheme which was to operate from Norfolk Island. The barrister was an expert in taxation and the information attested to the fact that he not only advised on the scheme; he promoted it to the syndicate. The court therefore held that he was not entitled to the privilege for advice that went to the promotion of an illegal act. The case of Citibank v FCT (1985) ATC 4714, also related to a scheme for potential minimisation of tax. Officers of the Taxation Office entered premises occupied by Citibank and seized documents, including some that they photocopied and removed from the premises. What was argued was whether the exercise of a general search and seizure warrant allowed the police to seize documents where legal professional privilege may attach. As a result of the difficulties imposed on police when executing warrants for search and seizure of documents, specific guidelines have been developed between the Australian Federal Police and the Law Council of Australia. (See: Ross and MacFarlane for a further explanation). In CAC v Yuill (1991) 172 CLR 319, the appellant claimed privilege in terms of a notice to produce documents and the Court upheld that view. The cases, Rules and procedures examined in this section, raise concerns about the way in which legal professional privilege can be used to defeat other investigations of potentially unlawful activities. Government and corporate lawyers: By virtue of the Evidence Act 1995, the existence of privilege is now defined and secure in these environments Cross on Evidence states that -

"In civil and criminal cases, confidential communications passing between a client and his/her legal advisor need not be given in evidence or otherwise disclosed by the client and, without the client's consent, may not be given in evidence or otherwise disclosed by the legal advisor if made either -

(1) to enable the client to obtain, or the advisor to give, legal advice; or (2) with reference to litigation that is actually taking place or was in the

contemplation of the client." If the document or communication was brought into existence by the efforts or activities of a number of government or corporate employees, the court will need to determine and/or examine the relevance or existence of some corporate or government purpose. In A-G (NT) v Kearney (1985) 151 CLR 500, the


104

court held that the purpose could not be to commit an illegal act, or to facilitate the commission of a crime. In Farrow Mortgage Services Pty Ltd (in liquidation) v Webb 39 NSWLR 601, a "joint interest" privilege was supported, where two clients jointly sought and received legal advice. Young J finding that where the joint interest privilege is asserted all must join in for the waiver to take place. This was the case in Farrow where the company and its directors separately received legal advice, even though that advice had not been jointly commissioned by both. In Waterford v The Commonwealth (1987) 61 ALJR 674, it was argued that the burden of proof, to prove the existence of the privilege in relation to a particular document or communication, was on the party who claimed the privilege and who was required to prove that it was solely for the purpose of legal advice. (See Anthony Lo Surdo, "Legal Professional Privilege: the position of copy documents" (1997) 35(5) LSJ 73; "A quiet revolution has been happening in legal professional privilege" (2001) 39(6) LSJ 50; Vince Brennan, "Investigative powers may impinge on privilege" (2001) 39(6) LSJ 52.) Confidential information: Quite apart from any question of privilege, legal practitioners have a positive duty to maintain the confidentiality of their client's business; and may not disclose client information without just cause or the express consent of their client. (See: Parry-Jones v Law Society (1968) 2 WLR 397) The Chinese Wall problem - conflicts of interest Rule 10 of the Solicitors’ Rules provides protections for a solicitor's former clients. It also applies to circumstances in which a presumption of a Chinese Wall is used to provide evidence that the information held within part of a firm can be isolated from other members of the firm. In Mallesons Stephen Jaques v KPMG Marwick (1990) 4 WAR 357, Ipp J indicated that -

"(the court) would restrain a solicitor from acting where there is a real and sensible possibility of confidential information being disclosed or used to the detriment of a former client."

Note that in December 1998, KPMG was again in the Courts regarding Chinese Walls. This time it was related to purely accounting matters, in a restraining action brought by Prince Jafri Bolkiah (of Brunei). The Court of Appeal did not restrain the firm. The House of Lords however did, rejecting the earlier approach of the High Court in New Zealand in the Russell McVeigh case. The House of Lords referred to the Rakusen -v- Ellis, Munday & Clarke decision which until the Prince Jefri case was the legal basis for the preservation of confidentiality which depended on the facts in each case and would be invoked "to avoid a significant risk of the disclosure or misuse of confidential information belonging to the former client". Lord Millett, with whose decision all other members of the court agreed, expressed the extent of the solicitor's duty as follows:-

"Whether founded on contract or equity the duty to preserve confidentiality is unqualified. It is a duty to keep the information confidential, not merely to take all reasonable steps to do so. Although it is not merely a duty not to communicate the information to a third party, it is a duty not to misuse it, that is to say, without the consent of the former client to make any use of it or to cause any use of it to be made of it by other otherwise than for his benefit.

The former client cannot be protected completely from accidental or inadvertent disclosure. But he is entitled to prevent his former solicitor from exposing him to any avoidable risk; and


105

this includes the increased risk of the use of the information to his prejudice arising from the acceptance of instructions to act for another client with an adverse interest in a matter to which the information is or maybe relevant.

His Lordship then considered what was the nature of the risk involved and considered how this had been considered in previous authorities. He went on to say many different tests have been proposed in the authorities. These include the avoidance of "an appreciable risk" or "an acceptable risk'.

"I regard such expressions as unhelpful; the former because it is ambiguous the latter because it is uninformative. I prefer simply to say that the court should intervene unless it is satisfied there is no risk of disclosure. It goes without saying that the risk must be a real one, not just merely fanciful or theoretical. But it need not be substantial..... I would also reject the approach taken by the New Zealand Court of Appeal in Russell McVeagh.... and adopted by the Court of Appeal in the present case. In my opinion the balancing exercise which was undertaken was inappropriate. This is not because the considerations which were thought to militate against the granting of injunctive relief were irrelevant, far from it. It is clearly relevant that Prince Jafri retained KPMG in the knowledge that they were BIA's auditors and that BIA would be put to inconvenience and expense if his retainer were to prevent it from employing KPMG services in the future.

But such considerations are relevant to a different question: whether in the circumstances Prince Jafri must be taken to have consented to KPMG's undertaking the further assignment for the BIA. For the reasons that I have given he must be taken to have consented to the acceptance by KPMG of the instructions given to Mr Harrison in June for these were a natural extension of the audit. But project Gemma was a very different matter. Absence such consent the considerations which the Court of Appeal took into account cannot in my opinion affect the nature and extent of KMPG's duty to protect it. This would run counter to the fundamental principal of equity that a fiduciary may not put his own interests or those of another client before those of his principal. In my view no solicitor should without the consent of his former client accept instructions unless, viewed objectively, his doing so would not increase the risk that information which is confidential to the former client may come into the possession of a party with an adverse interest."

The Lordships all agreed to the granting of the injunction to restrain KPMG from acting further in the project Gemma Investigation. Whilst much of the judgment refers to the role of solicitors and these tests appear to have been applied in the case of the firm of accountants, it was Lord Hope of Craighead who said "I consider that the nature of the work which a firm of accountants undertakes in the provision of litigation support services requires the court to exercise the same jurisdiction to intervene on behalf of a former client of the firm as it exercises in the case of a solicitor. The basis for that jurisdiction is to be found and the principles which apply to all forms of employment where the relationship between the client and the person to whom he does business is a confidential one. A solicitor is under a duty not to communicate to others any information in his possession which is confidential to the former client. But the duty extends well beyond that of refraining from deliberate disclosure. It is the solicitor's duty to ensure that the former client is not put at risk that the confidential information which the solicitor has obtained from the relationship may be used against him in any circumstances". The Court of Appeal decision in New Zealand of Russell McVeigh, McKenzie Bartlett & Co -v- Tower Corporation was delivered on 25 August 1998. The majority refused to restrain one of New Zealand's largest law firms from operating in Wellington in circumstances where the firm had previously had acted for the client in Auckland. At the conclusion of their judgment the majority said "Although the concepts of Chinese Walls and codes of silence leaves much to be desired, and cannot be allowed to obscure the realities of life …. in a firm, internal control measures may never the less in some circumstances be both appropriate and sufficient to ensure protection". In a separate but not dissenting judgment Blanchard J said "if the court finds that the law firm is by reason of its retainer for the first client privy to confidential information the disclosure of which to the


106

second client has the potential to be detrimental, it will act if further disclosure has actually occurred or is likely to occur [unless on a balance of probabilities the law firm negatives that concern]. This does not involve any presumption against the law firm, merely that if, in the court's judgment, the question is evenly balanced, the court will, on the side of caution, conclude that there is a real risk and disqualify the law firm from acting for the second client". Statutory extracts:

Evidence Act (1995) NSW

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PART 3.10- PRIVILEGES

DIVISION 1 - CLIENT LEGAL PRIVILEGES

117 Definitions

(1) In this Division:

"client" includes the following:-

(a) an employer (not being a lawyer) of a lawyer;

(b) an employee or agent of a client;

(c) an employer of a lawyer if the employer is:

(i) the Commonwealth or a State or Territory; or

(ii) a body established by a law of the Commonwealth or a State or, Territory;

(d) if, under a law of a State or Territory relating to persons of unsound mind, a manager,

committee or person (however described) is for the time being acting in respect of the person,

estate or property of a client - a, manager, committee or person so acting;

(e) if a client has died - a personal representative of the client;

(f) a successor to the rights and obligations of a client, being rights and obligations in respect of

which a confidential communication was made;

"confidential communication" means a communication made in such circumstances that, when it was made:

(a) the person who made it; or

(b) the person to whom it was made;

was under an express or implied obligation not to disclose its contents, whether or not the obligation

arises under law;

"confidential document" means, a document prepared in such circumstances that, when it was prepared:

(a) the person who prepared it; or

(b) the person for whom it was prepared;

was under an express or implied obligation not to disclose its contents, whether or not the obligation

arises under law;

"lawyer" includes an employee or agent of lawyer;

"party" includes the following:

(a) an employee or agent of a party;

(b) if, under a law of a State or Territory relating to persons of unsound mind, a manager,

committee or person (however described) is for the time being acting in respect of the person,

estate or property of a party - a manager, committee, or, person so acting; -

(c) if a patty has died - a personal representative of the party;

(d) a successor to the rights and obligations of a party, being rights and obligations in respect of

which a confidential communication was made.

(2) A reference in this Division, to the commission of an act includes a reference to a failure to act.


107

118 Legal advice

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result

in disclosure of:

(a) a confidential communication made between the client and a lawyer; or

(b) a confidential communication made between 2 or more lawyers acting for the client; or

(c) the contents of a confidential document (whether delivered or~, not) prepared by the client or a

lawyer;

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

119 Litigation

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result

in disclosure of:

(a) a confidential communication between the client and another person, or between a lawyer

acting for the client and another person, that was made; or

(b) the contents of a confidential document (whether delivered or not) that was prepared;

for the dominant purpose of the client being provided with professional legal services relating to an Australian or

overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or

overseas proceeding, in which the client is or may be, or was or 'night have been, a party.

120 Unrepresented parties

(1) Evidence is not to be adduced if, on objection by a party who is not represented in the proceeding by a

lawyer, the court finds that adducing the evidence would result in disclosure of:

(a) a confidential communication between the party and another person; or

(b) the contents of a confidential document (whether delivered or not) that was prepared, either by or at

the direction or request of the party;

for the dominant purpose of preparing for or conducting the proceeding.

(2) In this section a reference to a party includes a reference to a person who is, in relation to the party, a

person of a kind referred to, in relation to a client, in paragraphs (b), (d), (e) and (f) of the definition of

"client" in subsection 117(1).

121 Loss of client legal privilege: generally

(1) This Division does not prevent the adducing of evidence relevant to a question concerning the intentions, or

competence in law, of a client or party who has died.

(2) This Division does not prevent the adducing of evidence if, were the evidence not adduced, the court would

be prevented; or it could reasonably be expected that the court would be prevented, from enforcing an order

of an Australian court.

(3) This Division does not prevent the adducing of evidence of a communication or document that affects a

right of a person.

122 Loss of client legal privilege: consent and related matters

(1) This Division does not prevent the adducing of evidence given with the consent of the client or party

concerned.


108

(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if a client or party has

knowingly and voluntarily disclosed to another person the substance of the evidence and the disclosure was

not made:

(a) in the course of making a confidential communication or preparing a confidential document; or

(b) as a result of duress or deception; or

(c) under compulsion of law; or

(d) if the client or party is a body established by, or a person holding office under, an Australian

law - to the Minister, or the Minister of the State or Territory, administering the law, or the part

of the law, under which the' body is established or the office is held.

(3) Subsection (2) does not apply to a disclosure by a person who was, at the time, an employee or agent of a

client or party or of a lawyer unless the employee or agent was authorised to make the disclosure.

(4) Subject to subsection (5), this Division does not prevent the adducing of evidence if the substance of the

evidence has been disclosed with the express or implied consent of the client or party to another person

other than:

(a) a lawyer acting for the client or party; or

(b) if the client or party is a body established by, or a person, holding an office under, an

Australian law, the Minister, or the Minister of the State or Territory, administering the law, or

the part of the law, under which the body is established or the office is held.

(5) Subsections (2) and (4) do not apply to:

(a) a disclosure by a client to another person if the disclosure concerns a matter, in relation to

which the Same lawyer is providing, or is to provide, professional legal services to both the

client and the other person; or

(b) a disclosure to a person with whom the client or party had, at the time of the disclosure, a

common interest relating to a proceeding or an anticipated or pending proceeding in an

Australian court or a foreign court.

(6) This Division does not prevent the adducing of evidence of a document that a witness has used to try to

revive the witness's memory about a fact or opinion or' has used as mentioned in section 32 (attempts to

revive memory in court) or 33 (evidence given by police officers).

123 Loss of client legal Privilege: defendants

In a criminal proceeding, this Division does not prevent a defendant from adducing evidence unless it is

evidence of:

(a) a confidential communication made between an associated defendant and a lawyer acting for

that Person in connection with the prosecution of that' person; or

(b) the contents of a confidential document prepared by an associated defendant or by a lawyer

acting for that person in connection with the prosecution of that person.

Note: Associated defendant is defined in the Dictionary.

124 Loss of client legal privilege: joint clients

(1) This section only applies to a civil proceeding in connection with which 2 or more parties have, before the

commencement of the proceeding, jointly retained a lawyer in relation to the same matter.

(2) This Division does not prevent one of those parties from adducing evidence of:-

(a) a communication made by any one of them to the lawyer; or

(b) the contents of a confidential document prepared by or at the direction or request of any one of

them;

in connection with that matter.

125 Loss of client legal privilege: misconduct

(1) This Division does not prevent the adducing of evidence of:


109

(a) a communication made or the contents of a document prepared by a client or lawyer (or both),

or a party who is not represented in the proceeding by a lawyer, in furtherance of the

commission of a fraud or an offence or the commission of an act that renders a person liable to

a civil penalty; or

(b) a communication or the contents of a document that the client or lawyer (or both), or the party,

knew or ought reasonably to have known was made or prepared in furtherance of a deliberate

abuse of a power.

(2) For the purposes of this section, if the commission of the fraud, offence or act, or the abuse of power, is a

fact in issue and there are reasonable grounds for finding that:-

(a) the fraud, offence or act, or the abuse of power, was committed; and

(b) a communication was made or document prepared in furtherance of the commission of the

fraud, offence or act or the abuse of power;

the court may find that the communication was so made or the document so prepared.

(3) In this section:

"power" means a power conferred by or under an Australian law.

126 Loss of client legal privilege: related communications and documents

If, because of the application of section 121, 122, 123, 124 or 125, this Division does not prevent the adducing of

evidence of a communication or the contents of a document, those sections do not prevent the adducing of

evidence of another communication or document if it is reasonably necessary to enable a proper understanding

of the communication or document.

Example: A lawyer advises his client to understate her income for the previous year to evade taxation

because of her potential tax liability "as set out in my previous letter to you dated 11 August

1994". In proceedings against the taxpayer for tax evasion, evidence of the contents of the

letter dated 11 August 1994 may be admissible (even if that letter would otherwise be

privileged) to enable a proper understanding of the second letter”.

Case extracts:

[The cases which follow are generally authorities which relate to the development of the law of what is

now referred to as client legal privilege. Apart from setting the terms incorporated generally in the

Evidence Act 1995 they have included dicta which should be noted as qualifying the duty owed to the

client. In this context Rondel v Worsley set the standard for the public policy protection of immunity

from suit, and set the expression clearly that the paramount duty owed by a practitioner was to the

administration of justice. If this is the paramount duty, then notwithstanding the expression of Street CJ

in Harvey, the primary duty is owed to the client. The privilege cases show how the privilege does not

operate where practitioners improperly act in conjunction with or conspire with their client or where

the public interest over-rides the competing public interest clearly identified in Grant v Downs and

Baker v Campbell. The question of confidentiality is of obvious ethical importance. The appreciation

of this rule in practice is of great practical importance and if it not be strictly ethical, it bears directly

on one’s professional responsibility.]

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BAKER v CAMPBELL (1983) 153 CLR 52

[This case was decided before the Evidence Act changed the test. The first excerpts come from Gibbs

CJ’s judgment and set out the philosophy behind the privilege and at least five of the qualifications.

The third excerpt from Murphy J shows a sixth qualification.]

Although the relationship between solicitor and client imposes on the solicitor a duty (subject to certain

exceptions) to keep inviolate his client's confidences, that in itself has not been held to be a sufficient


110

reason for holding that legal professional confidences are privileged from disclosure. It is well

established that no obligation of confidence, of itself, entities the person who owes the duty to refuse to

answer a question or to produce a document in the course of legal proceedings. Recent recognition that

this is so appears in D. V N.S.P.C.C. ; Smorgon v. Australia and New Zealand Banking Group Ltd.;

Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd. The public

interest in discovering the truth prevails over the private duty to respect confidence: of. McGuinness v

Attorney-General (Vict.). The reason why privilege is extended to confidential communications made

by a client to his solicitor, and not to confidential communications made, e.g., by a patient to a doctor, a

penitent to a priest, or a customer to a banker, is that the view has been taken that in the first-mentioned

case the public interest requires that the private obligation of confidentiality be fulfilled, for a reason

which has been explained in many cases, of which Grant v. Downs is one of the most recent in

Australia. It is necessary for the proper conduct of litigation that the litigants should be represented by

qualified and experienced lawyers rather than that they should appear for themselves, and it is equally

necessary that a lawyer should be placed in full possession of the facts to enable him to give proper

advice and representation to his client. The privilege is granted to ensure that the client can consult his

lawyer with freedom and candour, it being thought that if the privilege did not exist "a man would not

venture to consult any skilful person, or would only dare to tell his counsellor half his case": Greenough

v Gaskell.

*******************

[ p67] Moreover, under the existing law, the confidentiality of communications between solicitor and

client, even when made solely for the purpose of professional advice or assistance in legal proceedings,

is not absolute. There are a number of circumstances in which evidence of the confidential

communication will be received. One may perhaps put aside for present purposes the rules that the

privilege may be waived by the client (although not by his solicitor) and that communications between

solicitor and client are not privileged if made for the purpose of committing or furthering a crime or

fraud. One cannot, however, ignore the rather remarkable rule that if the privileged document, or a copy

of it, has been obtained by the opposing party, by accident, trickery, or even by theft, it may be given in

evidence although the party entitled to the privilege or his solicitor could not have been compelled to

produce it: see Lloyd v Mostyn (Calcraft v Guest (Bell v. David Jones Ltd. (Kuruma v. The Queen

(Butler v. Board of Trade (Reg. v. Tompkins; Waugh v. British Railways Board. This rule has recently

been recognized in Canada (see Descoteaux v. Mierzwinski but rejected by the Court of Appeal in New

Zealand.

*********************

[p 86] The privilege does not attach to documents which constitute or evidence transactions (such as

contracts, conveyances, declarations of trust, offers or receipts) even if they are delivered to a solicitor

or counsel for advice or for use in litigation. It is not available if a client seeks legal advice in order to

facilitate the commission of crime or fraud or civil offence (whether the adviser knows or does not

know of the unlawful purpose) (see Reg. v. Cox and Railton; Bullivant v. Attorney-General (Vict.) (; R.

v Smith); but is of course available where legal advice or assistance is sought in respect of past crime,

fraud or civil offence. Hence the subject matter of the privilege is closely confined: in brief it extends

only to oral or other material brought into existence for the sole and innocent purpose of obtaining legal

advice or assistance.


111

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NICKMAR v PRESERVATRICE SKANDIA INSURANCE (1985) 3 NSWLR 44

[This decision of Wood J used the sole purpose test and concerned the issue of the disclosure of loss

assessors’ or investigators’ reports when prepared on the direct instructions of the insurance

company.]

In National Employers' Mutual General Insurance Association Ltd v Waind (1979) 141 CLR 648, it

was held, applying Grant v Downs, that reports obtained by the appellant, a workers compensation

insurer, from a firm of loss assessors, and medical reports, did not attract legal professional privilege.

The appellant was the insurer of the employer of a plaintiff in a common law negligence action for

personal injuries brought against a third party. The reports were obtained in the course of the insurer's

business, first, to decide whether the insured employer was liable for any claim made upon it, and,

secondly, for use in opposing any application that might be made by the employee to the Workers

Compensation Commission.

It was there reaffirmed by Mason J (at 654) with whose reasons Stephen, Jacobs and Aickin JJ agreed,

that it was not "the intended use of documents in litigation which attracts the relevant privilege", but

rather the "legal professional privilege which attaches to communications passing between legal adviser

and client".

The facts were analysed by Mason J (at 655-656) thus:-

“In this instance again, documents are brought into existence to enable the appellant to decide

what it will do. In this situation, if the appellant decides to discontinue payments, litigation is

likely to ensue. Although there is a greater likelihood that documents of this class will be

submitted to solicitors for use in litigation, the primary function for which they are called into

existence is, as the trial judge said, to enable the appellant to make a decision in the ordinary

course of its business. Only when the appellant has made a decision to discontinue payments

will the documents be submitted to solicitors for use in the subsequent litigation.

These facts do not sustain the existence of an overriding purpose of the kind which

the appellant seeks to set up. If it had been the practice of the appellant to refer every claim and

every case with the relevant reports to its solicitor for advice or information, the appellant

might have been in a position to establish the existence of an overriding purpose which would

found a claim to legal professional privilege. But the facts fall far short of this."

His Honour rejected (at 656) the appellant's submission that it was sufficient to attract privilege if the

documents were brought into existence for a “dual purpose of deciding what it will do and for use in

litigation by legal advisers when appropriate", as being inconsistent with Grant v Downs.

The decision concentrated on the purpose for which reports, made by third parties, and communicated

to an insurer, were brought into existence. It was not concerned with the question posed in the present

case where the communications were to the legal adviser of a party. It does, however, confirm that the

threshold test in Australia, by which claims to legal professional privilege are to be examined, is the

sole purpose test. The question it poses is simple: was the confidential communication, whether it be

written or oral, created or made solely for the purpose of submission to legal advisers for advice, or for

use in legal proceedings.

In this regard, reference may also be made to Baker v Campbell (1983)153 CLR 52; concerning the

relevant test (at 60, 86, 108 and 112) and to the observation of Deane J (at 115-116):-


112

“the principle underlying legal professional privilege is that a person should be entitled to seek

and obtain legal advice without the apprehension of being prejudiced by subsequent disclosure

of confidential communications and that the privilege is not confined to such communications

as are made in the course of or in anticipation of litigation but extends generally to confidential

communications of a professional nature between a person and his lawyer made for the

purpose of obtaining or giving legal advice."

It follows from Grant v Downs, and National Employers' Mutual General Insurance Association Ltd v

Waind, in my view, that the documents presently in question cannot qualify for a claim to legal

professional privilege unless they are confidential and satisfy the sole purpose test. There is no reason

why any less stringent test should be applied to documents prepared by agents or representatives of a

party, than for the party itself.

I turn next to the question whether there is an additional limitation of the privilege in relation to

documents prepared by third parties, not being servants or employees of the company called upon to

produce documents. In this regard, reference was made to Wheeler v Le Marchant (1881) 17 Ch D 675.

The documents there in question comprised letters passing between solicitors and surveyors to enable

them better to advise their clients. Jessel MR observed (at 680-681) that the respondents to the

application contended that:-

“..... documents communicated to the solicitors of the defendants by third parties, though not

communicated by such third parties as agents of the clients seeking advice, should be

protected, because those documents contained information required or asked for by the

solicitors, for the purpose of enabling them the better to advise the clients."

His Lordship said:-

“The cases, no doubt, establish that such documents are protected where they have come into

existence after litigation commenced or in contemplation, and when they have been made with

a view to such litigation, or of obtaining evidence to be used in such litigation, or of obtaining

information which might lead to the obtaining of such evidence, but it has never hitherto been

decided that documents are protected merely because they are produced by a third person in

answer to an inquiry made by the solicitor. It does not appear to me to be necessary, either as a

result of the principle which regulates this privilege or for the convenience of mankind, so to

extend the rule."

His Lordship continued (at 682):-

“the evidence obtained by the solicitor, or by his direction, or at his instance, even if obtained

by the client, is protected if obtained after litigation has been commenced or threatened, or

with a view to the defence or prosecution of such litigation. So, again, a communication with a

solicitor for the purpose of obtaining legal advice is protected though it relates to a dealing

which is not the subject of litigation, provided it be a communication made to the solicitor in

that character and for that purpose. But what we are asked to protect here is this. The solicitor,

being consulted in a matter as to which no dispute has arisen, thinks he would like to know

some further facts before giving his advice, and applies to a surveyor to tell him what the state

of a given property is, and it is said that the information given ought to be protected because it

is desired or required by the solicitor in order to enable him the better to give legal advice. It

appears to me that to give such protection would not only extend the rule beyond what has

been previously laid down, but beyond what necessity warrants."


113

The element which to his Lordship was essential in relation to third party communications was that

there be litigation either pending or in contemplation.

Brett LJ (at 683) adopted a similar stand, as did Cotton LJ who said (at 684-685), in relation to

communications between a solicitor and a third person in the course of advising his client, that:-

“Hitherto such communications have only been protected when they have been in

contemplation of some litigation, or for the purpose of giving advice or obtaining evidence

with reference to it. And that is reasonable, because then the solicitor is preparing for the

defence or for bringing the action, and all communications he makes for that purpose, and the

communications made to him for the purpose of giving him the information, are, in fact, the

brief in the action, and ought to be protected. But here we are asked to extend the principle to a

very different class of cases, and it is not necessary, in order to enable persons freely to

communicate with their solicitors and obtain their legal advice, that any privilege should be

extended to communications such as these."

Each of Jessel MR and Cotton LJ recognized that there was a distinction between communications from

third parties acting as agents of a client seeking advice, and from third parties not acting as agents.

Communications by the former could perhaps be regarded as communications of the client itself, and on

that account attract privilege, where made for the purpose of obtaining advice. Communications by the

latter however stand in a different position. Although they may become employed on behalf of the

client to do certain work, that work is not the communicating with the solicitor to obtain legal advice (at

684). It is only when their communications are in contemplation of litigation, or for the purpose of

giving advice or obtaining evidence with reference to it, that privilege attaches.

**********************

I see nothing unreasonable in the proposition that the documents were brought into existence for the

sole purpose of recording information for the use of the solicitors either in advising or in connection

with the defence of litigation. Their assessment of the defendant's position depended very much on a

consideration of whether the information available was sufficient, from an evidentiary point of view, to

establish any breach of a policy condition, or to justify the defendant taking the serious step of asserting

arson or fraud on the part of the insured. No light burden rests upon a party seeking to allege criminal

conduct in answer to a claim made against it, and it is prudent, if not essential, that it first obtain legal

advice.

I have no difficulty in concluding, in these circumstances, that the reports of J & D B Thomas &

Associates Pty. Ltd (documents 1, 9 and 15), and the experts' reports (documents II and 12) were

initially brought into existence for the sole purpose of permitting the solicitors either to advise the

defendant, or for use in defending the proceedings commenced in December 1984. Accordingly,

privilege attached to them at the time of their communication to the solicitors.

Different considerations may however apply in relation to some of the attachments to these reports and

in relation to the reports of the other loss adjusters (documents 10 and 13). Several questions arise in

relation to these documents which require separate consideration.

***********************

[p 59] The defendant submitted, in reliance upon the decision of Hunt J in McCaskill V Mirror

Newspapers Ltd [1984] 1 NSWLR 66, that these documents were privileged. It had there been argued

by the plaintiffs that if the original document was not privileged, then no copy of it should be

privileged, irrespective of the purpose for which it was brought into existence. In rejecting this

argument his Honour (at 69) declined to follow Shaw v David Syme & Co [1912] VLR 336 but

followed Wade v Jackson's Transport Service Pty Ltd [1979] Tas R 215; Kaye v Huithen [1981] Qd R

289 and Watson v Cammell Laird & Co (Shipbuilders and Engineers) Ltd [19591 I WLR 702; [1959] 2


114

All ER 757. His Honour regarded the decision in Shaw was not supported by the decisions in Chadwick

V Bowman (1886)16 QBD 561 and in Lyell V Kennedy (No 3) (1884) 27 Cli D I, upon which it was

based. He also regarded a dictum of Lord Denning MR in Buttes Gas and Oil Co v Hammer (No 3)

[1981] QB 223 at 244, to the contrary, as inconsistent with the principle restated in Grant V Downs.

Hunt J said (at 67-68) that an application of the proposition "that the law of legal professional privilege

is concerned with the purpose for which the particular document was brought into existence, rather than

the purpose for which the information which it records was obtained" produces "the clear answer that

the copy brought into existence for the sole requisite purpose was the subject of legal professional

privilege whatever the status of the original document of which it is a copy". He also observed (at 68)

that the plaintiffs' argument overlooked the circumstance that the mere fact that a party had

communicated a copy of the unprivileged document to his legal adviser for advice may itself be

confidential.

*********************

[p61] In my view, it is incorrect to state, as a general proposition, that a copy of an unprivileged

document becomes privileged so long as it is obtained by a party, or its solicitor, for the sole purpose of

advice or use in litigation. I think that the result in any such case depends on the manner in which the

copy or extract is made or obtained. If it involves a selective copying or results from research, or the

exercise of skill and knowledge on the part of a solicitor, then I consider privilege should apply (Lyell's

case). Otherwise, I see no reason, in principle, why disclosure should be refused of copies of documents

which can be obtained elsewhere, and in respect of which no relationship of confidence, or legal

professional privilege exists.

I see nothing in Grant v Downs or National Employers' Mutual General Insurance Association Ltd v

Waind as requiring a different conclusion. Neither of these cases was concerned to distinguish between

copies and originals. While it must be accepted by me that the privilege is concerned with the purpose

for which a document recording information is brought into existence, a literal application of the

principle to mere reproductions is likely to produce absurd and anomalous situations outside the

rationale of the principle. In this regard, I respectfully agree with the observation of Clarke J in Vardas

(at 661):-

“A rule attaching privilege to copies of non-privileged documents is not within the rationale of the

rule underlying the relevant privilege, conducive to expeditious and fair trials, nor consistent with

the strict approach for which Grant speaks."

Accordingly, I have reached the conclusion that the letter from Givens Emerson, and the attached copy

statements are not privileged. In summary, I have formed this view because I am not satisfied that the

original statements of which the attachments are copies were privileged in the hands of the third party

for whom they were obtained. If they were privileged then that privilege was in my view waived when

the copies were made and communicated, with the party's consent, to the defendant's solicitor. Further, I

am not satisfied, in a case where photocopy reproductions of documents were made and simply

transmitted to another party or its solicitor, without any research or exercise of skill beyond a request

for the copies, that the special position recognized in Lyell should apply.

***************************************************************************

A.G. (NT) v KEARNEY (1985) 158 CLR 500

[The seventh, eighth and ninth exceptions to the privilege are in Gibbs CJ’s judgment, contained in the

following excerpts, which also set out the background.]

GIBBS C.J. These four appeals from the Federal Court raise the question whether certain documents

are privileged from production on the ground that they were confidential communications which passed


115

between Ministers or officers of the Northern Territory and legal practitioners who were the salaried

legal advisers of the Territory for the purpose of seeking and giving legal advice in connection with the

preparation and drafting of certain regulations made by the Administrator of the Territory.

The Northern Land Council has made to the Aboriginal Land Commissioner two applications on behalf

of Aboriginals claiming to have a traditional land claim to the areas of land in the Northern Territory

respectively described in the applications. One application, lodged on 3 1 March 1978, relates to land in

the Katherine area and is referred to as the Jawoyn (Katherine Area) Land Claim; the other, made on 20

March 1979, relates to land in the Darwin area and is referred to as the Kenbi (Cox Peninsula) Land

Claim. The applications were made under s.50(l) of the Aboriginal Land Rights (Northern Territory)

Act 1976 (Cth), as amended ("the Act").

On 22 December 1978 regulations made by the Administrator of the Northern Territory in intended

exercise of the powers conferred by the Town Planning Ordinance 1964 (N.T.), as amended, prescribed

that certain specified areas of land should be subject to the provisions of that Ordinance as if they were

parts of the towns of Darwin and Katherine respectively. The Town Planning Ordinance was repealed

by the Planning Act 1979 (N.T.) and regulations made by the Administrator in intended exercise of the

powers conferred by that Act specified areas of land to be areas treated as the towns of Darwin and

Katherine respectively. Those regulations took effect on 3 August 1979. The details of these Acts and

regulations appear more completely from the judgments in Reg. v. Toohey; Ex parte Northern Land

Council The areas specified under the current Planning Regulations include, and those specified under

the repealed Town Planning Regulations included, lands which form part of the areas claimed in the

two applications made by the Northern Land Council. If these regulations were validly made, part of the

land claimed was land in a town and could not be the subject of a claim of the kind to which S. 50(1)

refers. In the course of the hearing of the Kenbi (Cox Peninsula) Land Claim, the Northern Land

Council wished to challenge the validity of the Town Planning Regulations and, when the Planning

Regulations came into operation, of the latter regulations also, on the ground that they were made for an

extraneous purpose, namely to defeat an actual or apprehended claim under the Act, but the Aboriginal

Land Commissioner, then Toohey J., held that the Administrator is the representative of the Crown, and

that it was not possible to inquire into the motives with which he made the regulations. He held, on 20

December 1979, that a large part of the land the subject of the claim was land in a town and was

therefore not available to be claimed under S. 50(l)(a).

*********************

[p 509] The reasons given by Kearney J. for making the order on 3 February 1984 were that legal

professional privilege does not extend to protect crime or fraud and that there was a prima facie case

that the communications came into being as part of a scheme to defeat the land claims. In the Full Court

Fisher J. held that "the Commissioner correctly classified the abuse of power upon which the Northern

Land Council relied as coming within what is labelled as the 'crime or fraud' exclusion from privilege

protection". The majority of the Full Court disagreed with that view. They held that the principle that

the privilege does not extend to protect crime or fraud has no application to a case in which it is claimed

that a statutory power to make regulations has been exercised for a purpose other than that for which, on

the proper construction of the relevant statute, the power was conferred. In their opinion, however, the

privilege protection, which is granted in the public interest, to secure the due administration of justice,

is displaced when a higher public interest requires it. They held that where a case has been made that a

statutory power to promulgate subordinate legislation has been exercised for an ulterior purpose the

public interest requires that the privilege which might otherwise attach should be displaced. The Full

Court accordingly discharged the order nisi and dismissed the application for judicial review in each

case.

*************************

[p512] In Varawa v. Howard Smith & Co. Ltd. (65), Griffith C.J said:-


116

"The point is taken now that the objection of privilege does not apply to a case of fraud, or

intended fraud, or of intended crime. I am not sure that the exception has ever been extended

beyond these two cases. But I am sure that it has never been held to apply to a case where all

that is alleged is that the evidence will show that the plaintiff knew he had not a good cause of

action."

In Crescent Farm (Sidcup) Sports Ltd. v Sterling Offices Ltd. (66), Goff J. held that communications

made between solicitor and client for the purpose of committing a breach of contract or furthering a

conspiracy to commit a breach of contract did not cease to be privileged. He said (67):-

"I agree that fraud in this connection is not limited to the tort of deceit and includes all forms

of fraud and dishonesty such as fraudulent breach of trust, fraudulent conspiracy, trickery and

sham contrivances, but I cannot feel that the tort of inducing a breach of contract or the narrow

form of conspiracy pleaded in this case come within that ambit."

In Wigmore, op. cit., par. 2298, p.573, it is said that the reasons for the protection given by the privilege

"cease to operate . . . where the desired advice refers not to prior wrongdoing, but to future

wrongdoing", and the question is then asked, amongst others, "Must not that unlawfulness [the

unlawfulness of the end for which the advice is sought] be either a crime or a civil wrong involving

moral turpitude?" The learned author states, at p.577, that this question should be answered in the

negative, but goes on to acknowledge that the decisions show "an inclination to mark the line at crime

and civil fraud". He adds:-

"Yet it is difficult to see how any moral line can properly be drawn at that crude boundary, or

how the law can protect a deliberate plan to defy the law and oust another person of his rights,

whatever the precise nature of those rights may be."

***********************

These statements of the principle, and the reason on which it is based, suggest that the exception is not

confined to cases of crime and fraud, even in the wide sense in which "fraud" has been used in this

context, unless the meaning of that word is extended to include anything that might be described as a

fraud on justice. In the United States some cases decided since the edition of Wigmore to which I have

referred have held that a communication for the purpose of committing a crime or tort is not protected:

Diamond v Stratton (78); Irving Trust Co. v. Gomez (79). However, the leading authority for present

purposes is the decision of this Court in Reg. v Bell; Ex parte Lees. In that case, after an order had been

made giving custody of a child to a husband, the wife disappeared taking the child with her. Later she

instructed a solicitor to take steps to protect her interest in the matrimonial home, and gave him her

address, asking that it be kept secret. It was held that her communication to her solicitor was not

privileged. Stephen J. said that the principle revealed in such cases as Russell v Jackson (81) pointed the

answer to the question before the Court. He continued:-

"It is true that the quite limited professional assistance sought by the wife from the applicant

was not itself to be used by her so as to further any illegal purpose. But there was absent from

her relationship with the applicant that reposing of professional confidence of which Stephen J.

spoke in Reg. v. Cox and Railton."

He concluded by saying:-


117

"One thing is clear. It is that privilege for an address cannot be claimed when its confidentiality

was sought, as here, in order to frustrate the processes of law."

******************

[Murphy J p516]In the present case the finding of Kearney J., confirmed in the Full Court, that there

was prima facie evidence that the communications with the legal advisers came into being as part of a

plan to defeat the land claims was plainly sustainable. The charge that the power was used for an

ulterior purpose was clearly made, and it has sufficient colour to displace the privilege. It should be

emphasized, as Kearney J. himself emphasized, that this is no more than a prima facie finding on the

present material and reflects in no way any view as to the probable outcome of the litigation.

For these reasons each of the four appeals should be dismissed.

***************************************************************************

O’DONOVAN v FORSYTH (1987) 76 ALR 97

[The initial excerpts from Fox and Northrop JJ are designed to provide the complex background to the

advice given by a Victorian QC which led to him being charged with criminal offences. He did not

originate the scheme designed to give tax deductions and avoid the recovery of assessable tax. By

giving advice as to the entry of the scheme he came into jeopardy. The two concluding excerpts are

from the judgments of Pincus J. The case if included as much for its value as a warning, as an

extension of the first qualification of criminal engagement. Here the practitioner was alleged to have

aided and abetted a conspiracy. ]

The matter thought by his Honour to be of particular moment was the magistrate's reliance on what

were called "interim rights". I understand these to be rights of the Commissioner to issue notices of

assessment and recover tax even before their correctness is determined finally by a court or tribunal. I

do not know that the magistrate relied upon the concept to the degree claimed by the present

respondents, but in any event it was turned to in answer to a submission that there could be no intention

to defraud unless some ascertained money sum (as on an assessment) was already involved. His Honour

was of the view that the magistrate should determine the income tax liability himself. I do not think this

is correct. All the magistrate had to find was evidence supporting a finding of a dishonest intention to

deprive the Commissioner (acting for the Commonwealth) of such tax as might be assessed. In

considering this matter he was entitled to look at the circumstances, and see what inferences could and

should be drawn. There were many aspects, including not least of all the alleged "gifts", but it was clear

from the evidence, as he saw it, that the participants themselves saw a clear risk that the CYP

companies would be assessed and correctly so. I would not therefore regard the alleged reliance on

"interim rights" as meaningful, or such as to require any reconsideration by the magistrate.

The case of Forsyth is certainly arresting, because he was a Queen's Counsel at the time advising upon

taxation, a subject in which he was expert. The learned magistrate (whose reasons occupy some 66

pages of the transcript, a burden which I suggest it is inadvisable and contrary to the interests of justice

to impose on a magistrate hearing committal proceedings) dealt fully with his position, with due

recognition of its favourable aspects. It is apparent that he took the view, which was supported by the

evidence, that Forsyth was not simply advising whether the scheme was likely to be successful, or was

lawful or unlawful. It was not simply a case of him being mistaken in his advice as to its lawfulness.

There is evidence which supports the following findings of the magistrate:-

"a reasonable jury could be satisfied beyond reasonable doubt, in the absence of credible

evidence from Mr Forsyth to explain and clear up the circumstances that:-


118

(iii) the advice given by Mr Forsyth in answer to question 6 of the Bexley brief, and the

oral advice to Messrs Rice and Boerkamp that what MTS was doing was no way

fraudulent and that they need not worry about criminal charges were not genuine

opinions, but were given with the intent and purpose of persuading or encouraging

Messrs Rice and Boerkamp to have the Bexley Corporation participate in the NIPAG

scheme:

"I am satisfied that a reasonable jury could be satisfied beyond reasonable doubt that:-

(a) at the time of the Bexley conference Mr Forsyth had actual knowledge of the essential

elements and facts of the agreement which I have found that a reasonable jury could

be satisfied was entered into by Messrs Connell, Lithgow, Swanson, Vereker and

Brown;

(b) at the Bexley conference Mr Forsyth intended to persuade or encourage Messrs Rice

and Boerkamp to have the Bexley Corporation participate in the NIPAG scheme and

that, if Mr Forsyth did not thereby enter into the main agreement with Messrs

Connell, Lithgow, Swanson, Vereker and Brown, he at least aided, abetted,

counselled and procured them and MTS to carry out the unlawful agreement which I

have previously stated could be found against them by a reasonable jury.

"As to whether Mr Forsyth's involvement through the Bexley conference involved dishonesty and

dishonest means, I am satisfied that a reasonable jury could be satisfied beyond reasonable doubt

that due to the general circumstances of the Bexley conference, the advice which Mr Forsyth gave at

that conference, and his knowledge of the essential elements and facts of the agreement entered into

by Messrs Connell, Lithgow, Swanson Vereker and Brown, that there was dishonesty on the part of

Mr Forsyth ..…”

*********************

[p 102] Before considering questions of law, it is desirable that an outline of facts be set out. They relate

to what has been called the "NIPAG" scheme. That scheme is extremely complex and it is not necessary

to consider it in detail.

The appeals concern the implementation of the Norfolk Island Public Art Gallery (NIPAG) scheme, a

tax minimisation scheme, by a company known as Metropolitan Taxation Services (MTS). The

promoters, other than Brown, were principals of MTS. Brown had effective control of the Norfolk

Island Public Art Gallery.

The scheme began to be implemented in 1979, following advice given by Forsyth, a barrister who

specialises in taxation law. The steps in the scheme were as follows:

(A) The promoters of the scheme would procure persons who were willing to sell shares held by

them in companies with both accumulated profits and current year profits (CYP companies).

(B) Such shares would be purchased by Q, a company controlled by MTS, for $900,000 (the

figures used in detailing the scheme are the hypothetical figures adopted by Forsyth in his

advice of 23 March 1979).

(C) The cash at bank of the CYP company would be $1,000,000, so Q would actually purchase the

shares at less than their true value.

(D) The $1,000,000 would comprise $200,000 accumulated profits and $800,000 current year

profits. The company would therefore have a potential taxable income of $800,000 in the year

of income then incomplete.


119

Pausing here, the vendor shareholders of the CYP companies would receive the $900,000 as a

nontaxable capital gain, rather than a sum which is assessable income. Also, the actual business of the

CYP company was not transferred to Q when the shares were sold. Q simply purchased the cash which

the company had in hand at the date of the purchase. The business of the company was transferred to a

new company with a substantially similar name and, presumably, the vendor shareholders would take

up shares in the new company and continue to run the business as normal.

(E) The $200,000 is immediately paid to Q by way of dividend. However, the $800,000, if

declared as a dividend, would be subject to taxation at the company rate, and tax would

therefore be assessed at approximately $400,000. Q has therefore paid $900,000 for a company

whose assets are worth $1,000,000, but which are subject to a notional tax burden of $400,000.

(F) It was therefore necessary to devise a method of dealing with the $800,000 so that it would not

be subject to income tax. In the hands of Q this was to be achieved by the following steps:

(G) Q would sell the CYP company to P for the nominal sum of $3, on the condition that P agreed

to cause the company to donate an agreed amount, namely $800,000, to the Norfolk Island

Public Art Gallery.

(H) By making such a donation to NIPAG, it was intended that P would obtain a legitimate tax

deduction for the entire $800,000, the art gallery being an institution, donations to which

would be tax deductible pursuant to S 78(1)(a)(xxvii) of the Income Tax Assessment Act 1936

(Cth) (the Tax Act). No tax would therefore be payable by the CYP company because it

would achieve a lawful deduction of an amount equivalent to its taxable income.

Pausing again, this would achieve the desired end of having no tax payable on the $800,000. However,

the amount would be left in the hands of NIPAG. It was therefore necessary to get the money out of the

hands of the art gallery and into the hands of the promoters. This was achieved through the purchase

and sale of artwork.

(I) It was anticipated that Q would purchase a painting for the small figure of $500. Q would then

sell the painting to BS, an interposed entity acting in its capacity as trustee of an art acquisition

trust, for $10 million.

(J) BS would on-sell the painting to NIPAG for $10 million.

(K) Prior to the sale by BS, Q makes an agreement with NIPAG that if NIPAG purchases the

painting for $10 million, Q will procure a gift of that amount to the art gallery (it would do so

as a result of its agreement with (P) or pay that sum itself. On the strength of this agreement,

NIPAG purchases a painting worth $500 for $10 million.

(L) To enable it to make the purchase in the first place, NIPAG receives $10 million by way of

loan from an associate of MTS (probably from BS acting in its own capacity and not as a

trustee), who, in turn, receives the money from Q. NIPAG therefore purchases the paintings

from Q with money indirectly supplied to it by Q.

(M) The "gifts" received by NIPAG from the CYP companies would presumably be utilised to

repay the MTS associate and ultimately Q.

(N) The hypothetical gift payment was $800,000, whereas the artwork is purchased for $10 million

- it would therefore be necessary for Q to purchase a sufficient number of CYP companies to

ensure the donations equalled $10 million.

Therefore, at the end of the day, it was intended that the scheme effectively achieve its three main aims,

namely to give the vendor shareholders in the CYP companies a sum of money which could be


120

characterised as a capital receipt; secondly, to reduce the taxable income of the CYP companies to nil

and in so doing leave the companies with no assets; and thirdly, to divest NIPAG of the $10 million and

put it back into the hands of the promoters' companies without it having borne income tax. However, in

the event that the Federal Commissioner disallowed the deductions, and the scheme did not achieve its

ends, the assets of the CYP companies would have been stripped by virtue of them having no other

assets after payment of the donations, and the Commissioner would not be able to recover any tax from

the CYP companies.

On 7 March 1979, Forsyth was briefed on behalf of MTS in respect of the NIPAG scheme and,

following discussions in conference, the scheme was set out in his advice dated 23 March 1979 in the

terms outlined above but without the explanations and comments which have been added by me.

On 31 May 1979, Forsyth attended what was described at the committal proceedings as the "Bexley

conference". Bexley Corporation (Aust) Pty Ltd was a CYP company, and the vendor shareholders

were concerned with the potential problems of the scheme. A conference was therefore arranged by

MTS at which it was hoped that Forsyth would "sell" the scheme to the reluctant vendors. At the

committal proceedings, Mr Boerkamp, the company secretary of Bexley Corporation, gave evidence

that Forsyth said that what MTS was doing with Bexley was in no way fraudulent and that there was no

need to worry about criminal charges. The Bexley conference assumed great importance in the context

of the allegations of fraud made against Forsyth because, according to the argument of counsel for the

informant, the assurance given by Forsyth at the conference completed the process of making him

criminally liable.

One hundred and eighty-six companies were processed through the NIPAG scheme by 31 October

1979. The "donations" to the art gallery totalled $60 million, a sum equal to the current year profits of

those companies. The paintings were purchased for $5400 and sold to NIPAG for $60 million.

*************************

In July 1985, Forsyth was charged with the above two offences, and in addition with two further

offences, namely:

• inciting, urging, aiding or encouraging others to conspire to defraud the Commonwealth

contrary to ss 7A and 86(1)(e) of the Crimes Act; and

• inciting, urging, aiding or encouraging others to conspire to prevent or defeat the execution or

enforcement of a law of the Commonwealth, namely the Income Tax Assessment Act 1936 in

contravention of ss 7A and 86(1)(b) of the Crimes Act.

The committal proceedings against the promoters and Forsyth were heard together by the magistrate in

the Magistrates Court at Melbourne.

************************

[p109] It is apparent from the reasons of the magistrate that he accepted and acted upon those

contentions and that his decisions were based upon the acceptance of the "interim rights" approach. In

his reasons for judgment, Jackson J, quite properly, concluded that in so doing the magistrate was in

error and that that error constituted a most exceptional case justifying the granting of the application

and the setting aside of the decisions of the magistrate. I agree with the opinion of Jackson J on this

matter.

At the hearing of the appeals, counsel now appearing for the informant did not seek to challenge that

conclusion of Jackson J. In fact, counsel did not challenge those parts of the orders appealed from

which set aside the decisions of the magistrate. They conceded that the matters should be remitted to the

magistrate for further hearing and determination according to law. They did object to those parts of the

orders which required the magistrate to determine the matters in accordance "with the reasons for

judgment herein", since they contended that those reasons for judgment showed that the magistrate had

to determine whether the NIPAG scheme was efficacious and that if he came to the conclusion the

scheme was efficacious, then there could be no conspiracy and the respondents should be discharged


121

out of custody as to the information before the magistrate. It follows, therefore, that what the informant

is seeking on the appeals is judicial advice with respect to the principles of law relating to the crime of

conspiracy and the application of those principles to the facts of the participation of the respondents in

the NIPAG scheme. This illustrates further the unsatisfactory nature of this type of proceeding being

taken during the course of committal proceedings.

**********************

[p 113]At the hearing before this court, counsel for the informant relied upon a contention not put to the

trial judge or the magistrate. In its application to the promoters, the contention can be summarised. The

actual legal effectiveness of the NIPAG scheme is irrelevant to the issue of whether the agreement was

a criminal conspiracy. It was foreseen that income tax may be payable on the CYP companies' current

year profits and one of the objects of the conspiracy alleged was to deprive, dishonestly, the

Commonwealth of the income tax to which it would, on that contingency, be entitled. The dishonest

means were that (a) the scheme itself was calculated, ie was likely, to conceal the fact that a genuine

gift had not been made or (b) the CYP companies would be stripped of assets, so that no recovery of

income tax could be made. Alternatively, it was contended that one of the objects of the scheme was, by

the dishonest means set out in (a) or (b), to prejudice presently or jeopardise the Commonwealth's right

to collect income tax on the income of the CYP companies in the event that income tax was payable

thereon. .............

It is interesting to note that counsel for the informant did not contend that the conspiracy consisted of an

agreement to do an unlawful act. They contended that the conspiracy consisted of an agreement to do a

lawful act by unlawful means. Implicit in that contention is the acceptance that the making of a gift

under 5 78 of the Tax Act which results in a taxpayer having no taxable income in any one tax year, is

not, by itself, an unlawful act. The unlawful means adopted by the promoters, as contended for by

counsel, can be identified as the concealment means and the contingency means. It follows that counsel

argued that, even if the payment of the "gifts" by the CYP companies eventually were held to be valid,

nevertheless the conspiracy had been established since the means used being either the concealment

means or the contingency means or both constituted unlawful means to do a lawful act.

***********************

[p116] In my opinion, the concealment means contention made on behalf of the informant should not

be accepted. In order for the contention to succeed, the informant would need to satisfy the magistrate

that the purpose of the purchase and the sale of the paintings at the inflated price was to deceive the

Commissioner. On the facts referred to on the appeal, it appears that the inflated price was charged as a

means of passing back to the promoters the moneys constituting the gifts to the Norfolk Island Public

Art Gallery. That by itself, does not constitute an unlawful means but, as part of a larger scheme, could

constitute part of unlawful means to achieve a lawful object. That will be for the magistrate to

determine from all the evidence before him.

*************************

[p117] It becomes necessary to consider the appeal involving Forsyth. This appeal and cross-appeal

involve important questions as to the liability of a barrister when giving advice in his professional

capacity as a barrister. It is not unusual for a barrister to be briefed to advise on questions which might

involve the client engaging in conduct which possibly could constitute a crime. The primary submission

of counsel for Forsyth was that at all times he was acting in his professional capacity as a leading

barrister in taxation law and that advice so given could not constitute evidence of Forsyth having

committed any of the crimes with which he is charged. They referred to what was said by Street CJ,

with whom Gordon and Ferguson JJ agreed in R v Tighe and Maher (1926) 26 SR (NSW) 94 at 108-9:-

"It is expected of course of every solicitor that he shall act up to proper standards of conduct,

that he shall give his clients sound advice to the best of his ability, and that he shall refrain

from doing anything likely to mislead a court of justice; but, in the course of his practice he

may be called upon to advise and to act for all manner of clients, good, bad or indifferent,

honest or dishonest, and he is not called upon to sit in judgment beforehand upon his client's

conduct, nor, because he does his best for him as a solicitor within proper limits, is he to be

charged with being associated with him in any improper way. In acting for a client, a solicitor

is necessarily associated with him, and is compelled to some extent to appear as if acting in


122

combination with him. So he may be, but combination is one thing and improper combination,

amounting to a conspiracy to commit a crime or a civil wrong, is another thing. An

uninstructed jury may easily fail to draw the necessary distinction between such combined

action as may properly and necessarily be involved in the relation of solicitor and client, and

such acts on the part of a solicitor, over and above what is required of him by his duty as a

solicitor, as may properly give rise to an inference of an improper combination. I think,

therefore, that it may be useful to point out the importance, in cases where a solicitor is

charged with entering into an agreement with his client which amounts to a criminal

conspiracy, of seeing that the jury are properly instructed as to a solicitor's duty to his client,

and that it is made plain to them that, before a solicitor can be convicted of conspiring with his

client to commit a wrong, it must be proved that he did things in combination with him, over

and above what his duty as a solicitor required of him, which lead irresistibly and conclusively

to an inference of guilt."

In that case, the court was speaking of a solicitor, but the same principles apply with respect to a

barrister.

Counsel for the informant relied upon the submissions made with respect to the promoters. They then

contended that Forsyth became a party to the conspiracy by the promoters when, knowing of its

dishonest elements, essentially the purpose that in the event of tax becoming payable by a CYP

company, that company would have no assets to meet that payment and that this formed an essential

part of the NIPAG scheme, he aided the promoters by giving advice to the shareholders of one of the

CYP companies, namely at the Bexley conference. They contended that by doing this Forsyth aided the

promoters in their conspiracy and by doing so, in agreement with them, became a co-conspirator with

them. They contended also, that the same facts were sufficient to support the charges under S 7A of the

Crimes Act.

************************

[Pincus J p120]The problem arises in a context hardly calculated to attract universal sympathy; the legal

task in which the respondent was engaged was advising as to the efficacy and legality of highly

artificial means to escape the impact of taxation. Nevertheless, the case has a bearing on an important

right, namely that of freedom of communication between citizens and legal advisers. Attempts were

made during the course of argument to suggest that the respondent had not truly acted as a barrister, for

such reasons as that persons in addition to his clients were permitted to attend a conference. There

seems to be nothing in that. The prosecution is in essence one for giving legal advice, and its

significance cannot be diminished by suggestions of such a kind.

A general solution to the difficulty of reconciling the principle whose importance was emphasised by

the High Court by Baker V Campbell with the law as to the position of accessories and that as to

criminal conspiracy was not put forward during argument, nor has any occurred to me. An analogous

problem was dealt with in the House of Lords in Gillick V West Norfolk and Wisbech Area Health

Authority [1986] AC 112, a case concerning the legality of doctors giving contraceptive advice to girls

under the age of 16 years (the age of consent). Lord Scarman thought the "bona fide exercise by a

doctor of his clinical judgment must be a complete negation of the guilty mind which is an essential

ingredient of the criminal offence of aiding and abetting the commission of unlawful sexual

intercourse": at 190. It is not clear whether a lawyer whose advice is said to have led to the commission

of offences may find exculpation in such a principle.

************************

[p126] A question which recurred during the course of the long arguments before us was whether or

not, within the meaning of 5 86(1)(e) of the Crimes Act, there could be a conspiracy to defraud

constructively, there being no actual dishonesty. Since the matter was persistently raised and the answer

seems clear, it is desirable to deal with the point. In my view, constructive fraud is not enough.

***************************************


123

CITIBANK v FCT ATC 4714 / (1988) 83 ALR 144

[This case and Yuills relate to the exception to the privilege that arises by direct statutory application.

The excerpts come from the decision of Lockhart J in the Federal Court, following a raid of

paramilitary proportions by tax officers. The raid was staged after initial liaison but in a way that

prevented legal advice being obtained or an approach to the court for urgent interim relief. Note that a

set of guidelines now exists to deal with search warrants so as to preserve documents from inspection

until a judicial ruling is made. Note also what his honour had to say about general commercial

confidentiality and consideration for this in planning the exercise of statutory entry and seizure.]

Lockhart J. On 15 June 1988 at approximately 11.30 am, 37 officers of the Australian Taxation Office

entered the premises of Citibank Ltd (Citibank) in Margaret Street, Sydney. Citibank occupies a number

of floors in the building where it conducts its business as a bank. The taxation officers proceeded in

groups to different parts of the premises, to which they had previously been assigned by their "team

leaders", and proceeded to search for documents many of which were copied and the copies taken away.

It appears that this search, "visit" or "raid", as it is variously described in the evidence, was the largest

operation of entry and search of private premises ever undertaken by the Commissioner who relies for

its authority on 5 263 of the Income Tax Assessment Act 1936 (Cth) (the Act). The search provoked a

strong reaction from Citibank and has attracted great public interest.

Although Mr Booth was not investigating Citibank itself, he believed that there were books and records

held at the offices of Citibank relating to the taxation affairs of the various companies who were in his

view participants in the preference share arrangement. He also believed that Citibank held at its offices

documents relating to other arrangements of a similar kind to the preference share arrangement, the

names of the participants in those other arrangements not being known to him. He held the view that the

amount of income tax involved in the various arrangements might be as high as $100 million.

************************

As one might expect, with 37 taxation officers moving about Citibank's premises and inspecting and

making copies of documents, and where that process was interspersed with conversations with staff of

Citibank, a rather confusing picture emerges as to the events of the day. A number of taxation officers

and a number of Citibank staff were called to give evidence.

Although there is a fair degree of common ground as to what occurred and what was said during the

day, there are also areas of dispute. Those areas of dispute are mainly in relation to details which in my

view do not matter in the ultimate outcome of the proceedings. It is hardly surprising that the

recollection of the various witnesses called, albeit that it was tested only some two months or so after

the day of the search itself, was precise on some matters and imprecise on others and that versions

differed. But this case raises questions of principle which determine its outcome, not variances in

evidence of this kind.

**************************

Citibank was, of course, under a duty of confidence owed to its various clients, as an express or implied

contractual obligation arising from the nature of its relationship with its clients: Smorgon V Australia &

New Zealand Banking Group Ltd (1976)134 CLR 475 per Stephen J at 487-90; 13 ALR 481 at 490-3. It

is equally clear that Citibank's duty of confidence is subject to and overridden by a statutory obligation

such as that imposed by 5 263 or 5 264: Smorgon's case per Stephen J (143 CLR at 506; 16 ALR at

427); per Gibbs ACJ (143 CLR at 522; 23 ALR at 487-8); Crowley V Murphy, supra. In my view, a

decision maker, reaching a decision to conduct a search under 5 263, and determining the scale of the

search and the manner in which it is to be conducted, must have regard to the effect of the search upon

those whose interests are affected, and as a corollary of that obligation must have regard to the effect of

the search upon a bank's ability to comply with its duty of confidentiality owed to its clients. The wider

the scope of the proposed search, and the larger the intrusion into the affairs of clients other than those

under investigation, the greater the relevance which this factor ought to be accorded in the decision

making process. This is not to allow a privileged situation to banks, or indeed to other financial

institutions and to solicitors and accountants and other professional people who owe duties of


124

confidence to their clients; but rather to require that the decision maker have regard to all relevant

circumstances, which will include the circumstance of the duties of confidence owed by such persons,

and the circumstance of the intrusion into the privacy of other clients of such persons consequent upon

the exercise of a statutory power overriding the duty of confidence.

Where the Act is silent about the matters which must be considered before the powers conferred by 5

263 are exercised and about the contents of written authorisations, I have a preference for a construction

which affords some reasonable degree of protection to existing legal rights of individuals and

corporations; and I lean against a construction which unnecessarily erodes those rights and supports the

exercise of unlimited bureaucratic power. That preference, as I have noted, has ample precedent in the

development of the common law.

*********************

Legal professional privilege

There remains the question of legal professional privilege. It must be accepted in my view since the

judgment of the Full High Court in Baker v Campbell (1983)153 CLR 52; 49 ALR 385 that 5 263 does

not override legal professional privilege. Baker V Campbell is an authoritative statement that the

doctrine of legal professional privilege is not confined to judicial and quasi-judicial proceedings and

that, in the absence of some legislative provision restricting its application, the doctrine applies to all

forms of compulsory disclosure of evidence. Section 263 is a section which requires the compulsory

disclosure of evidence and I see no basis for negating the application of legal professional privilege to

the section.

**********************

For a decision to be made leaving the question of a determination of legal professional privilege to

officers who were competent and experienced, but who did not necessarily have any legal

qualifications, in circumstances where the visit was made by some 37 officers who were instructed to

complete their task within a maximum of two hours, was in fact to pay little more than lip service to the

recognition of the possibility of the claim being made. It must be remembered that once a document has

been inspected and copied by officers of the Australian Taxation Office, for all practical purposes a

claim for privilege in any subsequent legal proceedings would be largely valueless, especially where a

necessary party to any litigation involving Citibank or any of its clients would be the Commissioner or a

Deputy Commissioner.

It is not for me to attempt to spell out the kinds of precautions that could have been built into the search

to safeguard any claim for privilege, an attempt not undertaken in Baker V Campbell, sup ra. One

method that might have been adopted, however, would have been to ensure that, once access had been

gained to Citibank's premises and before the search of documents was undertaken, notice be given to

appropriate employees of Citibank so that they could obtain either house counsel, if any, or a qualified

solicitor from the office of their solicitors at relatively short notice to assist in any assertion of a claim

for privilege. If there was any legitimate fear - which in my view would have been groundless in this

case and which

I do not think was entertained in any event - that documents might be moved about or even outside the

premises of Citibank to frustrate the search, adequate safeguards could have been adopted to prevent the

fear from being realised. In the circumstances of this case, the failure to pay proper regard to the

question of legal professional privilege in my view vitiates the decision. It was incumbent upon Mr

Booth to establish, when he decided to undertake the search on 15 June, a sufficient mechanism to

enable Citibank to assert a claim for legal professional privilege. This was not done.

As to the conduct of the search itself, I have already referred to the fact that both Mr Sime and Mr

Thom were denied the opportunity of obtaining legal advice about the search and, therefore, about

questions of legal professional privilege. Where a search was conducted by 37 officers of the Taxation

Office, under instructions to keep the search to a maximum of two hours, and given the confusion that a

surprise search of this magnitude would obviously create and did in fact create among employees of


125

Citibank, inadequate opportunity was given to Citibank to obtain legal advice to allow any meaningful

claim for legal professional privilege relating to documents of its clients to be asserted.

It is significant in this connection that Ms Rezek understood herself to be at liberty to make, and did in

fact make, copies of any document whether or not it related to the transaction in question so long as it

had, in her view, some relevance for the purposes of the Act. The documents copied by Ms Rezek

included documents about which it might reasonably be expected that a claim for legal professional

privilege might be made. Her understanding was that she was entitled to copy such documents, and that

so long as a claim for protection on the ground of legal professional privilege was not in fact made by

an employee of Citibank she was entitled to take the copies with her. Ms Rezek took the view, however,

that she was not bound to accord to any person the opportunity of knowing what had been copied or of

making a claim for privilege. She played an important role in the search itself and was one of the people

primarily involved in discussions with Citibank officers before 15 June. Her evidence in my view

illustrates the inadequacy of the attention given by Mr Booth to this question and the consequent

inadequacy of its treatment on the actual conduct of the search; yet she was one of the more

experienced investigation officers involved in the search. It is relevant, in this context, that a search

conducted on the scale of the one in question would involve greater difficulties for the occupier of the

premises in monitoring copying of documents and asserting a claim for privilege, where appropriate,

than would a search on a smaller scale, particularly where the search was undertaken with no prior

indication to the occupant of its imminence.

The decision of Mr Booth to conduct the search in the manner in which it was conducted, and the

method of the search in fact, in my view each denied Citibank the fundamental right of asserting or

claiming legal professional privilege which the High Court recognised in Baker v Campbell, and which

is founded in the considerations of public policy to which the court there referred.

***************************************************************************

FARROW MORTGAGE SERVICES PTY LTD v WEBB 39 NSWLR 601

[This case is included because the Court of Appeal expressed its view on the question of joint privilege

such as existed between directors as a class separate from the company.]

In the NSW Court of Appeal the issue arose as to whether directors had a joint interest in legal advice

obtained, and whether all had to concur before the privilege was waived. By majority, both questions

were answered in the affirmative. The question arose where directors had obtained advice and

provided it to a corporation whose liquidator could have been said to have waived it. The court

considered legal professional, joint and common interest privilege. Meagher JA dissented]

SHELLER JA. at p 604...

Introduction:

By statement of claim Farrow Mortgage Services Pty Ltd (In Liq) (Farrow), the appellant, began

proceedings against the respondents, Graeme Douglas Webb, Terry James Manderson and Peter

Douglas Spargo, who at all material times, until it was wound up, were the sole directors of CH Webb

Bros Pty Ltd (CH Webb). Amongst other things Farrow alleged that on or about 16 March 1990 while

the respondents were directors, it entered into a loan agreement with CM Webb pursuant to which it

made advances between 27 March 1990 and 18 June 1991. The advances with interest due at the end of

that period came to a sum of over $14 million. Apart from a relatively modest amount, CH Webb failed

to repay the money lent or interest. On 24 June 1991, CM Webb was wound up and James Millar

appointed its official liquidator. Part of Farrow's claim against the respondents was based on an

allegation that before each advance was made there were reasonable grounds to expect either that CM

Webb would not be able to pay all its debts as and when they became due or, alternatively, that, if CM

Webb incurred the debt, it would not be able to pay all its debts as and when they became due: 5 556(1)

of the Companies (New South Wales) Code and 5 592(1) of the Corporations Law. Accordingly the

respondents were jointly and severally liable for the whole of the debt.


126

Robilliard & Robilliard were CM Webb's solicitors and also, according to the evidence, for a period

from before 1988, the personal solicitors of each of the respondents. When CM Webb went into

liquidation eight documents, the subject of this appeal, came into the custody of the liquidator. The

documents are described in par (a) to par (h) of a schedule to the respondents' notice of motion of 3

April 1995 and were created as the result of instructions received and acted upon by Robilliard.

*******************************

[p 607] Legal professional privilege:

Legal professional privilege protects from disclosure confidential communications between legal

adviser and client and rests not simply upon the confidence reposed by the client in the legal adviser but

the necessity, in the interests of justice, of carrying it out: Russell v Jackson (1851) 9 Hare 387 at 391;

68 ER 558 at 560. Until recent times the strong tendency of judicial opinion was to regard this

protection as "fundamental to the due administration of justice", to use the words of Stephen J in

Smorgon V Australian and New Zealand Banking Group Ltd (1976)134 CLR 475 at 488. In Baker v

Campbell (1983)153 CLR 52 at 66, Gibbs CJ said:

"More recently, doubts have been expressed as to the value of the privilege (see Grant V

Downs (1976) 135 CLR 674 at 685-686; and O'Reilly v State Rank of Victoria Commissioners

(1983)153 CLR 1 at 26) and greater emphasis has been laid on the fact that it conflicts with

another important principle of public policy, namely that all relevant evidence should be

adduced to the court when it makes its decision: see also Waugh v British Railways Board

[1980] AC 521 at 531-532, 535-536. Nevertheless, confidentiality does tend to promote

candour, and it would be a very great change in long established practice if a party were bound

to reveal to the court such things as an advice on evidence given to him by counsel and

statements taken from witnesses for the purpose of a pending action, and such a change could

not be made without the fullest examination of its possible consequences”.

Mason J (at 74) said that the later extension of the privilege to cover communications relating to advice

unrelated to legal proceedings, actual or prospective, entailed a declaration that the underlying policy

was more broadly based - that it involved the promotion of freedom of consultation generally between

lawyer and client: see also per other members of the Court (at 89, 93, 114, 130). The need, in the

interest of the due administration of justice, to promote candour in communication between client and

legal adviser underlies any consideration of the question whether and to what extent legal professional

privilege will protect such communications from disclosure.

Shared or similar interest in subject of communication:

Two or more persons may join in communicating with a legal adviser for the purpose of retaining his or

her services or obtaining his or her advice. The privilege which protects these communications from

disclosure belongs to all the persons who joined in seeking the service or obtaining the advice. The

privilege is a joint privilege. So is it also if one of a group of persons in a formal legal relationship

communicates with a legal adviser about a matter in which the members of the group share an interest.

Communications by one partner about the affairs of the partnership or a trustee about the affairs of the

trust are examples. Implicit in the relationship is the duty or obligation to disclose to other parties

thereto the content of the communication. Accordingly no privilege attaches to such communications as

against others who, with the client, share an interest in the subject matter of communication. But the

parties (together are entitled to maintain the privilege '~against the rest of the world": Phipson, par 20-

28 and par 20-29. Logically the joint nature of the privilege means that all to whom it belongs must

concur in waiving it. Theirs is one inseverable right. In pars 20-29 the learned editors of Phipson say

that in the case of joint interest, it is sufficient, as against third persons, if only one of the interested

parties claims the privilege, though all must concur in waiving it. In Rochefoucauld v Boustead [1897J

1 Ch 196, two parties were engaged in a joint venture. The first invited the second to consult his

solicitor but, in proceedings against both parties, waived any privilege in respect of what took place.

The second party was held to remain entitled to insist upon the maintenance of the privilege.

************************


127

The privilege attached to legal advice obtained by a company is not lost when the advice is disclosed to

its directors but this is not because of their common interest. The company can only manifest its acts

and intentions by the actions and declarations of human beings: Black V Smallwood (1966)117 CLR 52

at 61, Tesco Supermarkets Ltd V Nattrass [l972 AC 153 at 171. The directors’ knowledge of the

decision to obtain advice and the contents of that advice cannot be treated as a disclosure to a party

separate from the company itself. The directors receive and act upon this information as the mind and

directing will of the company. Accordingly the disclosure involves no waiver of the company's

privilege.

Common interest privilege:

Common interest is not in this context a rigidly defined concept. A mere common interest in the

outcome of litigation will be sufficient to enable any party with that interest to rely on it: Buttes Gas

and Oil Co V Hammer (No 3) [1981 QB 223. (Although the House of Lords reversed this decision it

expressed no opinion about common interest privilege: [1982] AC 888.) In that case the Ruler of

Sharjah obtained legal advice which, with other documents prepared on his behalf in anticipation of

litigation, he communicated or produced to Buttes, an oil company whose interest in a concession in the

American Gulf depended on the Ruler's interest. Buttes had by then brought proceedings claiming

damages for slander against another oil company, Occidental, and its chairman and retained the same

solicitors as the Ruler. Occidental counter claimed alleging fraudulent conspiracy between the Ruler

and Buttes in relation to the granting of the concession. The Ruler delivered the documents to Buttes

under a requirement of strict confidence which had not at any time been relaxed. Buttes resisted giving

inspection of the documents on the ground that they were the subject of legal professional privilege.

Lord Denning MR (at 243) described "common interest" privilege as a privilege in aid of anticipated

litigation in which several persons have a common interest.

... It often happens in litigation that a plaintiff or defendant has other persons standing

alongside him - who have the self same interest as he and who have consulted lawyers on the

selfsame points as he - but these others have not been made parties to the action. Maybe for

economy or for simplicity or what you will. All exchange counsel's opinions. All collect

information for the purpose of litigation. All make copies. All await the outcome with the same

anxious anticipation - because it affects each as much as it does the others. Instances come

readily to mind. Owners of adjoining houses complain of a nuisance which affects them both

equally. Both take legal advice. Both exchange relevant documents. But only one is a plaintiff.

An author writes a book and gets it published. It is said to contain a libel or to be an

infringement of copyright. Both author and publisher take legal advice. Both exchange

documents. But only one is made a defendant.

In all such cases I think the courts should - for the purposes of discovery - treat all the persons

interested as if they were partners in a single firm or departments in a single company. Each can avail

himself of the privilege in aid of litigation. Each can collect information for the use of his or the other's

legal adviser. Each can hold originals and each make copies. And so forth. All are the subject of the

privilege in aid of anticipated litigation, even though it should transpire that, when the litigation is

afterwards commenced, only one of them is made a party to it No matter that one has the originals and

the other has the copies. All are privileged.''

************************

[p 618] I think Young J [the judge at first instance] was correct in his conclusion that the contract was

in each case between one or other of the companies and Robilliard & Robilliard. This is what Young J

understood to be meant by retainer. Robilliard & Robilliard could not and did not look to the

respondents for payment of their fees. But Young J was also right to conclude, in my opinion, that

advice was being j sought from the solicitors not only by the companies but also by the respondents

and the occasions of the seeking and giving of that advice were privileged in consequence. This left for

consideration the question whether that privilege had been waived.


128

Waiver:

In Lee V South West Thames Regional Health Authority, Donaldson MR said that H could "certainly"

waive its rights and, were it to do so, the report which it had asked SWT to obtain would "clearly" have

been disclosable by SWT. In Buttes Gas and Oil Co V Hammer (No 3), the Ruler of Sharjah originally

enjoyed the protection of legal professional privilege in respect of the documents prepared on his behalf

in anticipation of litigation, against the world, unless it could be said that his interest with Buttes in the

subject matter of the documents was a joint interest which required him to disclose them to Buttes, in

which case he might not alone have been able to waive the privilege. On the other hand if he were not

required to disclose the documents to Buttes, the privilege would seem to have been his alone to waive,

at least until he made them available to Buttes. Then the question would have been whether, by

disclosing the documents to Buttes, he had waived his own privilege.

************************

In the case of common interest privilege, as distinct from joint privilege, I do not think it will always be

necessary that all interested parties concur for the privilege to be waived. If in principle legal

professional privilege vested in a party is not lost by dissemination of the contents of confidential

documents to others with a common interest, I think that fairness, in many cases, will require that the

privilege not be lost because one of those parties, be it the provider or the recipient, is minded to waive

it. Once parties with a common interest have exchanged or provided one to another the contents of

communications with legal advisers about the subject of their common interest, the question of whether

the privilege is lost with its waiver by one must be determined by asking whether the waiver has made it

unfair for the other parties with a common interest to maintain the privilege: Attorney-General (NT) V

Maurice (1986) 161 CLR 475 at 488. This requires account to be taken of such matters as the

circumstances in which the privileged communication took place and came to be exchanged and

provided to others.

**************************

In my opinion there was sufficient commonality of interest between CH Webb or other Webb

companies on the one hand and the respondents on the other to give the respondents the protection of

legal professional privilege in regard to the eight documents in the schedule. The evidence

overwhelmingly supported Young J's conclusion that instructions were given and advice obtained on

behalf of both the companies and the respondents. They joined in seeking it and for that reason it might

be said that the privilege was a joint privilege. Clearly the evidence demonstrates that the interest of the

company of CH Webb and the respondents in the various matters the subject of the eight documents

was a shared one and common to all. Even if the privilege was not joint, I have no doubt that the

circumstances in which the advices were sought and given required that as a matter of fairness waiver

by the liquidator not be treated as waiver by the respondents.

***************************************************************************


129

10. Protecting the client and his/her lawyer

Without prejudice communications: Where communications are exchanged on a "without prejudice" basis involving the negotiations for settlement, the general law recognises a general claim to privilege. Lord Griffith noted in Rush v Tompkins Ltd v Greater London Council (1988) 3 WLR 939, that -

"The without prejudice rule is a rule governing the admissibility of evidence and is founded upon the public policy of encouraging litigants to settle their differences rather than litigate them to a finish."

And, in Cutts v Head (1981) 1 Ch 290, Oliver LJ stated -

"That the rule rests, at least in part, upon public policy is clear from many authorities, and the convenient starting point of the enquiry is the nature of the underlying policy. It is that parties should be encouraged, so far as possible, to settle their disputes without resort to litigation and should not be discouraged by the knowledge that anything that is said in the course of such negotiations (and that includes, of course, as much the failure to reply to an offer as an actual reply) may be used to their prejudice in the course of the proceedings."

The High Court in Field v Commissioner for Railways for New South Wales (1957) 99 CLR 285, held that an admission made by the plaintiff to an examining doctor, whilst settlement negotiations were being undertaken, was not reasonably incidental to the negotiations to be protected from the "without prejudice" rule. In a joint judgment the majority of the Court held -

"As a matter of public policy the law has long excluded from evidence admissions by words or conduct made by parties in the course of negotiations to settle litigation... This form of privilege, however, is directed against the admission in evidence of express or implied admissions.... For example, neither party can use the readiness of the other to negotiate as an implied admission."

The question of costs arose in Amev-U D C Finance v Artes Studios Thoroughbreds (1988) 13 NSWLR 486, where the court determined whether correspondence written on a "without prejudice" basis might be admissible in determining liability for costs. The court holding that recent cases determined that the general rule that "without prejudice" offers of settlement were not admissionable on matters of costs. Loans and liens: A solicitor's general retaining lien allows the retention of documents until the payment of costs owed by the client. A solicitor may also have a particular lien in terms of the capacity to have costs paid from a judgment or other money that the solicitor is responsible for recovering. In Stewart v Strevens (1976) 2 NSWLR 321, the court was asked to decide whether a solicitor who had lent money to a client, with whom he had a solicitor/client relationship, was entitled to withdraw monies, to his client's credit in his trust account, in repayment of the loan, without his client's expressed instructions. The court held that he could not, without breaching the requirements of s41 of the Legal Practitioners Act, to account for transactions in his trust account, by the provision of an authority from the client.


130

The particular lien is described as a claim by a solicitor to the right to seek the equitable intervention of the court to protect the solicitor's entitlement to payment of the solicitor's costs out of a judgment of other moneys which the solicitor had been instrumental in obtaining or recovering on behalf of a client. In a number of cases the courts have also held that there can be no lien unless the property is in the possession of the person who claims the lien. In Akki v Martin Hall Pty Ltd v Anor (1994) NSWLR 470, the Equity Division of the Supreme Court confirmed the view that the particular lien represented a special class of right to a solicitor to attach the proceeds of a judgment in order to recover costs. See Conduct’ Rules 14, 15 and 16. (See for example, Hughes v Hughes [1958] 3 All ER 179 and Gamlen Chemical Co (UK) Ltd v Rochem Ltd &

Ors [1981] 1 All ER 1049.)

[2355] Breach of retainer and exercise of lien (see [10535] Riley 2000)

Where a solicitor's retainer constitutes an entire contract for completion of a particular task or

proceedings at Common Law, the solicitor is not entitled to remuneration, under the retainer, until its

completion.

…

Failure to complete a retainer may, depending on the circumstances, affect a solicitor's entitlement to

remuneration and thus the solicitor's right to maintain a lien for unpaid costs.

As stated in Re Elfis and Somers; Ex parte Tydhof (unreported, Supreme Court of Queensland 1982) -

"Unilateral determination by (a solicitor) of his retainer is a breach of contract amounting to

repudiation of the engagement which, on general principles, prevents him from recovering his

fees; and if he is not entitled to recover his fees, he is not entitled to assert a lien in respect

thereof."

In Isaacs v Cachia [1981] 2 NSWLR 92, McPherson J indicated that -

"(not every breach of contract by a solicitor) results in his being deprived of his remuneration.

Incidental or collateral negligence in the course of performing the contract, but which falls

short of rendering the work wholly useless, does not have such consequence."

In the same matter Yeldham J stated -

"To defend an action by the solicitor for his bill on the ground of negligence, it must be shown

that the result is wholly fruitless, and that the failure results wholly from the negligence;

whether this is so or not is a question of fact."

On the appeal of the same matter to the Court of Appeal, Hope J stated -

"The rights of a solicitor to recover costs in cases in which he has been negligent in the

provision of his services are related to whether or not the contract for the provision of services

is an entire contract for retainer or a contract which is divisible; whether a contract of

retainer is entire or divisible and in what circumstances it may be terminated involves no more

than the application of the principles generally applicable to contracts, except to the extent

that questions of public policy may intrude, and must be determined according to the

circumstances of the particular case. Where a contract of retainer is an entire one the question

for determination is whether the client can establish total lack of benefit due to the solicitor's

negligence."


131

[2360] Preservation of lien by a solicitor delivering documents to another solicitor on terms (see

[10530] Riley 2000)

The Solicitors’ Rules provide for a solicitor to preserve a lien, where physical possession is relinquished

subject to conditions.

In Caldwell v Sumpters & Anor [1971] 1 ChD 478, solicitors who claimed a lien on a former client's

deeds, after proceedings had been taken against them for the return of the deeds, sent them to the

client's new solicitors with a letter stating "these deeds .... are being sent to you on the understanding

that you will hold them to our order....".

Salmon LJ in the Court of Appeal stated that -

"In my judgment, however, Sumpters had made no mistake. The letter and all the surrounding

circumstances show that they did not intend to abandon their lien nor to part with legal

possession of the documents. They offered them to their brother solicitors to hold as their

agents on their behalf so that they might be enabled to prepare a draft contract of sale. To my

mind it is plain that Margolis & Co were under a legal obligation to return the documents to

Sumpters or make them available to Sumpters on Sumpters' request."

Duties and liabilities to third parties: The terms of the contract between solicitor and client are determined within the retainer for services; and the duty of care implied within those terms will be governed by the instructions given by the client. Whether a legal practitioner owes any duty or liabilities to third parties in the conduct of their work is a complex issue, involving a range of considerations within tort liability. Additionally, whether an action for negligence will succeed for purely economic loss sustained by a third party is also an issue. In Hill v Van Erp High Court decision (1997) 142 ALR 687, the High Court was asked to consider a specific issue on appeal from the District Court. That issue was whether the appellant, a solicitor, owed a duty of care to the respondent. If the answer to that question was yes, then, the appellant was negligent and therefore the award of the District Court, in the sum of $163,471.50 should stand. The respondent failed to receive a benefit under a will prepared by the appellant, who was retained by the deceased. The will was deemed to be void under s15 of the Succession Act 1981 because of a procedural defect in the witnessing of signatures, where the respondent's husband signed the will as an attesting witness. The court held that there was no decision, binding on it, which directly determined whether a solicitor who prepared and arranges for the execution of a will is under a duty of care to a person named as a beneficiary. In determining that the appellant owed duties to the respondent the court took the view that negligence could be asserted on the basis of proximity. In arriving at this view the court noted that a solicitor owes a duty for work done, which may create economic loss for a person other than the person for whom the work was expressly done - in this case, a party for whom the deceased had wished to make provisions. In Ross v Caunters (1979) 3 All ER 580, similar points of law were argued, specifically -

"whether solicitors who prepare a will are liable to a beneficiary under it if, through their negligence, the gift to the beneficiary is void."

The judgment provided further evidence of a shift towards wider definition of general duties and obligations resulting from the work of legal practitioners. The court identified a number of specific issues -

"(1) Despite the dicta in Robertson v Fleming, and what was said in Groom v Crocker, and other cases in that line, there is no longer any rule that a solicitor who is negligent in


132

his professional work can be liable only to his client in contract; he may be liable both to his client and to others for the tort of negligence.

(2) The basis of the solicitor's liability to others is either an extension of the Hedley Bryne

principle or, more probably, a direct application of the principle of Donoghue v Stevenson.

(3) A solicitor who is instructed by his client to carry out a transaction that will confer a

benefit on an identified third party owes a duty of care towards that third party in carrying out that transaction, in that the third party is a person within his direct contemplation as someone who is likely to be closely and directly affected by his acts or omissions that he can reasonably foresee that the third party is likely to be injured by those acts or omissions.

(4) The mere fact that the loss to such a third party caused by the negligence is purely

financial, and is in no way a physical injury to person or property, is no bar to the claim against the solicitor.

(5) In such circumstances there are no considerations which suffice to negative or limit

the scope of the solicitor's duty to the beneficiary."

The decisions in these cases uphold the principle in Hawkins v Clayton (1988) 164 CLR 539, that collateral obligations can exist in both contract and tort, since obligations can be both expressed and implied. A solicitor should contemplate the impact of negligence upon a third party who can show sufficient proximity as identified in Hill and Ross.

Case extracts:

***************************************************************************

FIELD v COMMISSIONER FOR RAILWAYS FOR NEW SOUTH WALES (1957) 99 CLR 285

[In this joint judgment of the High Court the principles of the rule that a communication representing

an admission is not admissible where it arose in the course of attempting to resolve potential or actual

litigation. Note that the matter protected is the admission by conduct or document, and that the matter

could be proved by other objective evidence once revealed in “without prejudice” communications.

Note also that offers of settlement now are encouraged and should normally follow the prescribed form

and procedure as to filing and or service.]

DIXON C.J., WEBB, KITTO AND TAYLOR JJ. This appeal is brought by the plaintiff in an action

against the Commissioner for Railways for New South Wales, who is the respondent, for the recovery

of damages for personal injuries sustained through falling as he was alighting from a train in which he

was a passenger. The action was tried before Brereton J. in Sydney from 24th to 27th April 1956. The

jury returned a verdict for the defendant. The plaintiff applied to the Full Court of the Supreme Court

for a new trial on grounds which included wrongful admission of evidence and misdirection. The

application was refused and it is from the order dismissing the motion for a new trial that the present

appeal is brought by the plaintiff.

*********************

Three points were made in support of the plaintiff's condition that the jury's verdict should be set aside.

The first point was that a piece of evidence given by a medical witness who had been appointed by the

defendant to examine the plaintiff had been admitted wrongly. The evidence contained an admission

attributed to the plaintiff that he was getting off the train while it was in motion. The contention for the

plaintiff is that the conversation with the doctor who gave the evidence was the subject of privilege

because it formed a part of or an incident in an attempt to settle litigation by negotiations without

prejudice.


133

*********************

The outcome was as an arrangement for suspending the proceedings whilst the plaintiff submitted to a

medical examination by a specialist nominated on behalf of the defendant. The arrangements included

terms as to the defendant's paying the expenses of the plaintiff's journey to Sydney for the purpose. The

result was that on 17th November 1953 the plaintiff attended the consulting rooms of Dr. L. Teece, an

orthopaedic surgeon practising in Sydney. At the trial Dr. Teece was called to give evidence of

amongst other things the opinion he had formed of the plaintiff’s condition.

When Dr. Teece gave evidence he was asked, "Did you get a history from the plaintiff?”. He answered,

"Yes". "Will you tell us what the history was that you got from him?" To this question an objection

was raised on the ground that the interview with Dr. Teece was privileged as being "without prejudice".

The objection was overruled.

********************

p291 It can hardly be doubted that both parties understood that, if, as in the event happened, the

negotiations for settlement should break down, then Dr. Teece might give the evidence of his actual

observations of the plaintiff's bodily condition and the opinion he formed of his injuries. In this sense

the examination had a double aspect. Primarily it was to enable the defendant to obtain a medical report

in order to form an estimate of his injuries for the purpose of making an offer of settlement. Failing

settlement, the purpose was to enable the defendant's medical expert to give evidence of what he saw.

The law relating to communications without prejudice is of course familiar. As a matter of policy the

law has tong excluded from evidence admissions by words or conduct made by parties in the course of

negotiations to settle litigation. The purpose is to enable parties engaged in an attempt to compromise

litigation to communicate with one another freely and without the embarrassment which the liability of

their communications to be put in evidence subsequently might impose upon them. The law relieves

them of this embarrassment so that their negotiations to avoid litigation or to settle it may go on

unhampered. This form of privilege, however, is directed against the admission in evidence of express

or implied admissions. It covers admissions by words or conduct. For example, neither party can use

the readiness of the other to negotiate as an implied admission. It is not concerned with objective facts

which may be ascertained during the course of negotiations. These may be proved by direct evidence.

But it is concerned with the use of the negotiations or what is said in the course of them as evidence by

way of admission. For some centuries almost it has been recognised that parties may properly give

definition to the occasions when they are communicating in this manner by the use of the words "

without prejudice" and to some extent the area of protection may be enlarged by the tacit acceptance by

one side of the use by the other side of these words: see Thomas v Austen (1); Kurtz & Co v Spence &

Sons (2); Paddock v Forrester (3); Hoghton v Hoghton(4); In re River Steamer Co.; Mitchell’s

Claim(5); Walker v Wilsher(6). Needless to say, the privilege is a matter to be raised by objection to the

admissibility of the evidence. For the purpose of deciding such an objection the judge may take

evidence on the voir dire.

***********************

The question really is whether it was fairly incidental to the purposes of the negotiations to which the

medical examination was subsidiary or ancillary that the plaintiff should communicate to the surgeon

appointed by the Railway Commissioner the manner in which the accident was caused. To answer this

question in the affirmative stretches the notion of incidental protection very far. The defendant's

contention that it was outside the scope of the purpose of the plaintiff's visit to the doctor to enter upon

such a question seems clearly right. On the whole the conclusion of the Supreme Court that the

plaintiff's admission fell outside the area of protection must command assent as correct. It was not

reasonably incidental to the negotiations that such an admission should be protected. It was made


134

without any proper connection with any purpose connected with the settlement of the action. In these

circumstances it appears that the evidence of Dr. Teece on this subject was admissible.

**************************************************************************

AMEV FINANCE v ARTES STUDIOS THOROUGHBREDS (1988) 13 NSWLR 486

[This case confirms that a “without prejudice” communication is not admissible for any purpose, even

on a costs argument and the “Calderbank” alternative should be used whereby it is expressly indicated

that the offer will be used on a costs argument. In practice, be careful to follow the prescribed

procedure for offers set down in appropriate Court Rules.]

HODGSON J. I gave reasons for judgment in this matter on 10 June 1988, and it is now necessary for

me to make final orders. One question which has arisen concerns the question of costs.

On behalf of the defendant, certain without prejudice letters have been tendered with a view to showing

that an offer had been made to the plaintiff in excess of the amount recovered by the plaintiff. It is

submitted that in circumstances where there was a fund in court from which the plaintiff could have

satisfied any consent judgment, this matter is highly relevant to the question of costs. However, as

conceded by the defendant, the case of Walker v Wilsher (1889) 23 QBD 335; 58 LJQB 501, is to the

effect that without prejudice offers of settlement are not admissible even on questions of cost.

In recent times, there has been a qualification to that rule which is referred to in the cases of Cutts v

Head [1984] Ch 290 and Messiter V Hutchinson (1987) 10 NSWLR 525; 4 ANZ Ins Cases 74,906.

According to those cases, if a letter is written without prejudice, making an offer of settlement, but

asserting that the party making the offer will seek to rely on the letter on the question of costs, then that

letter may be admitted on the question of costs.

However, the qualification referred to in those cases was not present in the correspondence sought to be

relied on here. It has been put that considerations of public policy really require that material of this

kind be admitted so that reasonable offers of settlement can be encouraged. It is put that this outweighs

the consideration of public policy referred to in earlier cases such as Walker V Wilsher. It is further put

that the rule about without prejudice negotiations is not an absolute rule; without prejudice

correspondence may be used to refute allegations of laches. It may be used as showing an act of

bankruptcy, and it is such that the protection of without prejudice cannot be relied on to mislead the

court.

On the last point, I was referred to Pins v Adney (1961) 78 WN (NSW) 886; 119611 NSWR 535. It was

put that in this case, to exclude the without prejudice negotiations would involve misleading the court,

because at 31-32 of my judgment I said that the plaintiff had to contest this case to obtain the amount

which it has in fact recovered.

I think there is force in these submissions, but on balance I think they should be rejected. In my view, it

is desirable that the effect of without prejudice communications be clear, and while accepting the view

expressed in the recent decisions that such correspondence is admissible where the intention to tender

them on the question of costs has been shown, it seems to me that to allow without prejudice material to

be tendered where that intention is not disclosed would introduce undesirable uncertainty into the


135

position. It could be that persons making without prejudice offers might wish that such offers not be

used even on questions of costs, and it seems to me that the possibility of protecting without prejudice

offers altogether should be preserved.

In my view, the case does not fall within the situation where the court would be misled by the

withdrawing of the material. In accordance with Walker v Wilsher, such material is not admitted on

question of costs, and in those circumstances the inevitable result is that the court proceeds on the basis

that the plaintiff had to come to court to obtain the relief in question.

For those reasons, I do not admit the without prejudice material that has been tendered, and in those

circumstances, as I understand it, both parties accept that the order which I foreshadowed in the reasons

is an appropriate one.

[His Honour then considered matters not calling for report.]

**************************************************************************

STEWART v STREVENS [1976] 2 NSWLR 321

[Helsham J had to decide whether a solicitor could remove from trust moneys that the client owed him

for a private debt. His honour found that he could not. The case is important in considering the fore-

runner to §61 LPA and the difference between a general and particular lien.]

Helsham J. The question is whether a solicitor who has performed legal work for his client, and who

has lent his client money while the relationship of solicitor and client existed, is authorised, without

express direction by his client, to withdraw amounts from money standing to the credit of the client in

his trust account for the purpose of reimbursing himself for costs and disbursements incurred and

expended in respect of such work, and for the purpose of repaying himself the money lent. The

question arises in the following circumstances.

About mid 1971 the defendant was retained by the plaintiff to act for him as solicitor in relation to a

deceased estate in respect of the will of which deceased the plaintiff was named as executor and

beneficiary. Thereafter up to October 1974, and perhaps after, the defendant acted as the solicitor for

the plaintiff in a number of matters. They became friends, and the defendant lent the plaintiff three

sums of money, $1,000, $850 and $800; only the sum of $1,000 was repaid directly by the plaintiff to

the defendant. Their personal friendship, as was put by Acting Master Gyles in his reasons for

judgment on a reference to him, to which I shall refer later, “may have encouraged a certain looseness

or informality of arrangements which has contributed to the difficulties”. At any rate the defendant,

from or shortly after the time of the commencement of the relationship of solicitor and client, had

money standing to the credit of his client in his general trust account, and this was in substance the

position up to the cessation of the relationship in October 1974.

*****************************

The other aspect of the question arises as follows. On 1 October 1974, the defendant, as solicitor for

the plaintiff, had received a sum of money, being the plaintiff’s share of the proceeds of sale of a certain

property, and paid this sum into the trust account. This made an amount standing to the credit of the

plaintiff in the defendant’s trust account of $1,871.10. On the same day the defendant transferred this

amount to his general account. It was done without reference to the plaintiff. At that stage the plaintiff

owed the defendant $1,650 for money lent (the two sums of $850 and $800 mentioned above) together

with an amount for costs and disbursements in respect of a number of matters over the years of the

relationship between them; no bill had been prepared or rendered for these.

The parties had by this time fallen out, or did so afterwards. The plaintiff commenced proceedings in

this Court, which were in substance proceedings for account, although there was a claim for damages as

well. The matter came before me, and by agreement proceeded only on the question of the right to have


136

an account taken; after a while there was a consent order made that it be referred to the Master to take

an account of all moneys received and disbursed by the defendant as solicitor for the plaintiff, and of all

trust account transactions and of all loans by the defendant to the plaintiff. Acting Master Gyles held an

inquiry into these matters; the various sums have been ascertained. But the question arises as to

whether the defendant was entitled to transfer moneys from his trust account to his general account in

the way which he did, and whether he must reimburse the plaintiff in some way upon the basis that he

was not permitted to do so. The total sum of $2,488.07 is involved. The Acting Master referred this

question back to me, stating, rightly I think, that the matters “all depend upon the implied authority of a

solicitor to pay trust moneys to himself (a) for costs not yet rendered, (b) for disbursements paid for

which no account has been sent, and (c) in repayment of advances made to or for the client”.

**************************

So that the clear words of s. 41(1) would prevent a solicitor from making payments to himself in the

way that the defendant did here.

But two things must not be overlooked before reaching a final decision. The first is that it is

conceivable that a client may direct disbursements to be made from his money not expressly but by

implication. For example, if a solicitor asks his client for money to put him “in funds”, and if he pays

any money given him in pursuance of that request into his client’s trust account, there may well be an

implied direction that he should meet such disbursements as are necessary to be paid as they arise. It is

unnecessary to make a decision upon this or upon any other situation that might arise, because in the

present case there is nothing in the evidence that could be said to be an implied direction to the solicitor

to disburse any of the client’s money to himself. There was no express direction.

The second matter relates to the part of s. 41 which provides that “nothing in this section ... shall be

construed to take away or affect any just claim or lien which any solicitor may have against or upon any

of the moneys”: s. 41(3). It is not easy to understand just what was intended by this provision, and the

question is whether a claim for costs, a claim for repayment of disbursements made on behalf of a

client, or a claim for money lent, or any of these claims, falls within the ambit of the words “just claim”

as used in the subsection, and if so, whether that affects in any way the primary duty of a solicitor

resting upon him by virtue of s. 41(1) to deal with the money in accordance with that subsection.

Two things need to be quoted. One is that the provision in s. 41(3) relates to claims against or upon the

moneys or any of them. The moneys in this context clearly mean client’s money, i.e. received by the

solicitor for or on behalf of his client; the subsection is worded in a way that restricts it to claims against

the client’s money, and does not embrace claims against the client. The other is that s. 41(3) does not in

terms cut into the primary obligation of a solicitor to hold his client’s money exclusively for the client,

and to pay it to him or as he directs; all it does is to preserve any right of the solicitor that could be

categorised as a just claim against the moneys received by him.

I suppose a client could assign or charge the whole or part of his equitable interest in the chose in action

represented by the trust account to his solicitor, and in that case it might be said that a solicitor obtained

a just claim against the moneys in it or some of the moneys. But I do not really believe that that was

what the s. 41(3) is getting at. The only other way in which a solicitor might obtain what could be

called a just claim to moneys received for his client is in pursuance of the common law lien that goes

with recovery by him for the client of a fund, or the proceeds of a judgment in the course of litigation or

arbitration; in such a case there is a lien for his costs of recovery by the exertions authorised by his

retainer. The lien is over the money, and it may be actively enforced by application to the Court. As it

was put by the learned authors of Cordery on Solicitors, 6th ed., p. 433: “This common law lien is in

face not a mere lien but a claim to the equitable interference of the court to have the judgment held as a

security for costs”, and if the money in respect of which the lien is claimed is already in his hands the

solicitor may retain thereout the amount of his costs, and pay over the balance to his client. This is, no

doubt, because the lien is one that may be actively enforced, and is not a mere retaining lien, as is the

case with the solicitor’s general lien: Bozon v Bolland; Ex parte Patience; Mackinson v The Minister;

Halsbury’s Laws of England, 3rd ed, vol. 36, p. 180 et seq., pars. 247 et seq.; Cordery, op. cit, Ch. 13,

p. 416 et seq. The general or retaining lien in England may extend to money in a client account Loscher


137

v Dean, but I do not think that is the case in New South Wales; for in the last mentioned case Harman J.

said:-

“I do not see why a solicitor, if he has money in his possession, has not got any ordinary lien

on it. The fact that he puts it in a client account does not mean that it is any the less his

account, although it is earmarked in that way; and it seems to me that the client could not

demand that the money be handed over”.

I do not think that same reasoning would apply here in view of the express contrary provisions of s.

41(1), which were not then, and are not, present under the equivalent Solicitor’s Act in England or the

account rules. Therefore, I am sure that what is stated in the notes to s. 40 of the Legal Profession Act

1958 (Vic.) in the textbook The Victorian Solicitor by Gifford and Heymanson, 3rd ed., p. 61, correctly

state the position in New South Wales; s. 40(3) is virtually in identical terms to the portion of s. 41 of

the New South Wales Act that I have been discussing. The learned authors state: “A solicitor has a

general lien over moneys in his possession, even although he has placed them in a trust account. The

client cannot obtain the moneys until he has paid his bill of costs; ... “. They cite the case of Loescher v

Dean as authority, but, as I have said, I think that case must be read in the light of the absence in

England of any statutory provision equivalent to s. 41, and in the light of the English Solicitor’s

Account Rules; s. 40 of the Victorian Act contains a provision similar to s. 41(1) of the New South

Wales Act, but, notwithstanding this, my view is that the client or lien referred to in s. 41(3) is restricted

to the particular lien for costs referred to above, and that it was not intended to refer to any general lien.

I believe my views get support from the judgment of Turner J. in Shand v M J Atkinson Ltd (in liq.).

But I might add that, in the present case, it probably does not matter, since, if s. 41(3) was intended to

preserve a solicitor’s general lien over client’s money in his possession rather than, or in addition to, the

particular lien, it would not give the solicitor in this case any right to withdraw money from the trust

account and pay it to his own account in satisfaction of his costs; the general lien, being a retaining lien,

would only give a right not to pay the money claimed for costs to, or at the direction of the client.

So that, where s. 41(3) expressly provides that the provisions of the section relating to the duty of a

solicitor to pay over client money as directed shall not affect “any just claim or lien which any solicitor

may have against or upon any of the moneys”, it is my view that what is being referred to is the

solicitor’s claim for costs, and his right to a lien for them, which is known as the particular lien of a

solicitor over funds or proceeds of a judgment recovered in money for the client, and what is intended is

that such a claim and lien should be preserved, notwithstanding that the funds or judgment moneys may

have been received by the solicitor for and on behalf of the client.

If this be the correct way of reading the words of s. 41(3), then it is clear that any right to transfer to his

general account moneys received by a solicitor for and on behalf of his client and paid into a trust

account, and any right to pay moneys to himself out of moneys received, is limited to the special

situation of the particular lien, and intended to preserve a right of recoupment available to a solicitor

under the common law. It does not touch the facts of the present case.

In these circumstances, I hold that the solicitor was not entitled to make any transfers from moneys

standing to his client’s credit in his trust account to his general account in respect of those matters

which were referred to me for a decision.

**************************************************************************

ROSS v CAUNTERS [1979 ] 3 All ER 580

[This case was not referred to in the later High Court case of Hawkins v Clayton but they both held

solicitors liable for economic loss relating to failure to either advise or act in relation to a will. The

potential liability to a beneficiary can be traced to this case and independently later adopted in

Australia, due to the proximity argument. This is more important in the context of the tort of negligence

but is included as a warning and also for the expression of the duties owed by a solicitor to the client.]


138

SIR ROBERT MEGARRY read the following judgment: In this case, the facts are simple and

undisputed, and the point of law that it raises is short; yet it has taken five days to argue, and over 30

authorities, from both sides of the Atlantic, have very properly been cited, some at considerable length.

In broad terms, the question is whether solicitors who prepare a will are liable to a beneficiary under it

if, through their negligence, the gift to the beneficiary is void. The solicitors are liable, of course, to the

testator or his estate for a breach of the duty that they owed to him, though as he has suffered no

financial loss it seems that his estate could recover no more than nominal damages. Yet it is said that

however careless the solicitors were, they owed no duty to the beneficiary, and so they cannot be liable

to her.

If this is right, the result is striking. The only person who has a valid claim has suffered no loss, and the

only person who has suffered a loss has no valid claim. However grave the negligence, and however

great the loss, the solicitors would be under no liability to pay substantial damages to anyone. No doubt

they would be liable to the testator if the mistake was discovered in his lifetime, though in that case the

damages would, I think, be merely for the cost of making a new and valid will, or otherwise putting

matters right. But the real question is whether the solicitors are under any liability to the disappointed

beneficiary. On behalf of the plaintiff in this case counsel says Yes, and on behalf of the defendant

solicitors counsel says No.

***********************

From this, it follows that I reject part of counsel's first main contention. Let me for the moment leave on

one side the narrow liability that he said Hedley Byrne established. That apart, it cannot be contended

that to hold a solicitor liable to a third party for the tort of negligence would be inconsistent with a

solicitor's immunity in tort towards his client, for there is no such immunity, and so there can be no

such inconsistency. With that ground of objection removed, the question is whether a solicitor owes a

duty of care to a beneficiary under a will that he makes for a client, and, if so, on what basis that duty

rests. This is, of course, the central core of the case.

***************************

In considering this, three features of the case before me seem to stand out. First, there is the close

degree of proximity of the plaintiff to the defendants. There is no question of whether the defendants

could fairly have been expected to contemplate the plaintiff as a person likely to be affected by any lack

of care on their part, or whether they ought to have done so: there is no 'ought' about the case. This is

not a case where the only nexus between the plaintiff and the defendants is that the plaintiff was the

ultimate recipient of a dangerous chattel or negligent misstatement which the defendants had put into

circulation. The plaintiff was named and identified in the will that the defendants drafted for the

***********************

One feature of the case that I should mention is this. It will be remembered that in Hedley Byrne 3 the

liability of the bankers (had there been no disclaimer of responsibility) depended on the advertising

agents having acted in reliance on the references given by the bankers, coupled with the fact that the

bankers knew or ought to have known of that reliance. Where a testamentary gift fails by reason of the

negligence of the solicitor who prepares the will, there will often be no reliance at all, as where the

beneficiary knows nothing of the intended gift until after the testator's death. In other cases there will be

no more than a passive reliance: the beneficiary knows of the making of the will and the gift to him, and

does nothing, relying on the solicitor to have seen to it that the will is effective, or simply assuming this.

*************************

It seems to me that these reasons apply with equal force to a case in the first category mentioned above,

namely, those in which there is no reliance at all by the beneficiary, whether active or passive. If a

solicitor negligently fails to secure the due execution of a will, I can see no rational ground for

distinguishing between those who knew that a will in their favour was being made and passively relied

on the solicitor's skill or his implicit representation of the due execution of the will, and those who

knew nothing of the making of the will and relied on nothing. In each case, once it is held that the

solicitor owes a duty of care to the beneficiaries, the loss to them is directly caused by the solicitor's

breach of that duty, and reliance by the plaintiff is irrelevant. If the duty of care is imposed on what I

may call pure Donoghue v Stevenson 2 principles, and the loss occurs without being dependent on any

reliance by the plaintiff, then I cannot see how the presence or absence of reliance by the plaintiff can


139

affect liability: see, for instance, Dutton v Bognor Regis United Building Co Ltd'. On the other hand, in

many cases reliance is essential to liability: if the defendant negligently makes an untrue statement but

the loss to the plaintiff occurs without his having relied on that statement, plainly the defendant has in

no way caused the loss.

************************

The second main head of counsel for the defendants was that apart from cases within Hedley Byrne', a

claim in negligence for financial or economic loss alone was bound to fail; for with that one exception

there is no cause of action in negligence for such loss. The present case, of course, is plainly one in

which the plaintiff's loss is purely financial. Neither person nor property nor anything else has been

injured: the loss is simply that the plaintiff will not receive a gift of money and chattels as a result of the

defendants' negligence. No loss could be more purely and exclusively financial. Does that preclude

recovery unless the case can be brought within Hedley Byrne?

There are at least two ways in which Hedley Byrne' may be regarded. First, it may be regarded as

establishing a special category of case in which alone, by way of exception from the general rule, purely

financial loss may be recovered in an action for negligence. Second, it may alternatively be regarded as

establishing that there is no longer any general rule (if there ever was one) that purely financial loss is

irrecoverable in negligence. Instead, such loss may be recovered in those classes of case in which there

are no sufficient grounds for denying recovery, and in particular no danger of exposing the defendant to

a degree of liability that is unreasonable in its extent.

***********************

With that, I turn to the third main head of counsel for the defendants. This is concerned with reasons of

policy. These reasons, he said, not only pointed against holding a solicitor liable in negligence to

anyone save his clients, but also failed to support any extension of his liability to those who are not his

clients, such as the plaintiff in the present case. Under the first limb of this, the main contention was

that the primary duty of a solicitor was to his client, and that to impose on a solicitor a duty to third

parties would be to dilute the solicitor's duty to his client; and that would be undesirable. Counsel for

the defendants took as an example a solicitor who is preparing a will for a rich man with a wife, an ex-

wife and issue of both marriages. In discussing the will, questions between the two families would be

likely to arise, and it would be undesirable for the solicitor to have to look over his shoulder in such

cases of possible conflict by imposing on him any duty of care to others than his client. When asked

how this view could apply to a case such as the case before me, where there was no possibility of any

conflict, and the testator's object was to give a share of residue to the plaintiff, a gift which the plaintiff

would gladly receive, counsel was obliged to contend that the rule for cases where there is a possible

conflict must also govern cases where there is none.

This argument seems to me to confuse duties which differ in their nature. In broad terms, a solicitor's

duty to his client is to do for him all that he properly can, with, course, proper care and attention.

Subject to giving due weight to the adverb 'properly', that duty is a paramount duty. The solicitor owes

no such duty to those who are not his clients. He is no guardian of their interests. What he does for his

client may be hostile and injurious to their interests; and sometimes the greater the injuries the better he

will have served his client. The duty owed by a solicitor to a third party is entirely different. There is no

trace of a wide and general duty to do all that properly can be done for him. Instead, in a case such as

the present, there is merely a duty, owed to him as well as the client, to use proper care in carrying out

the client's instructions for conferring the benefit on the third party. If it is to be held that there is a duty

that is wider than that that will have to be determined in some other case. The duty that I hold to exist in

the - present case, far from diluting the solicitor's duty to his client, marches with it, and, if anything,

strengthens it. I therefore reject the first limb of this contention.


140

***************************************************************************

HAWKINS V CLAYTON

(1988) 164 CLR 539

[Persistence paid off for this plaintiff. He lost initially, was dismissed by the Court of Appeal as statute

barred. The High Court, also using the proximity argument found the solicitor liable to the plaintiff, as

executor and beneficiary. The first three excerpts are from the decision of Mason CJ then follows two

excerpts from Deane J’s judgment].

The law imposes the duty on the custodian of a deceased testator’s will for the protection of the

executor and, derivatively, for the protection of the beneficiaries. It is not a duty owed to the deceased

testator. The damage suffered in consequence of a breach of the duty is not a loss of title to the assets in

the estate nor a loss of the executor's right to possession of the assets. A breach of the duty does not

infringe any proprietary or possessory rights vested in the executor by the will. The loss is a loss of the

exercise or enjoyment of the rights of ownership by an executor who does not know of his entitlement.

As such a loss increases with the passing of time, the duty to disclose is a duty to disclose is a duty to

disclose promptly.

The extent of the duty to disclose promptly is not at large: it is limited by reference to the purpose of

making the will effectual. If the executor knows of the will, its contents and its custody, further

disclosure by the custodian is not needed. And when disclosure is required, the steps which need to be

taken are those which are reasonable in the circumstances including the contents of the will, the

custodian's knowledge and means of knowledge of the identity and location of the parties interested

under the will and of their relationship with one another. The cost of extensive inquiries and the

expected value of the estate are relevant considerations in determining what steps are reasonable. The

cost of reasonable inquiries is a cost incurred to make the will effectual and, I should think, a

testamentary expense which the executor would be authorized to pay out of the estate in due course: see

Hurst v. Hurst

I am conscious that it has been said in recent judgments of this Court that the existence of a duty of care

depends on whether the requisite relationship of proximity exists between a person who is said to owe

the duty and a person to whom the duty is said to be owed and that I have not adopted that approach in

determining whether a duty of disclosure exists in this case. The notion of proximity as I understand it

is simply Lord Atkin's neighbourhood principle which depends on the reasonable foreseeability of loss.

Others have understood the notion to subsume foreseeability within a wider concept underlying the

wide variety of cases which may be gathered under the heading of "negligence". In deference to

majority judgments in this Court, I would be constrained to inquire whether ~the requisite relationship

of proximity" existed if that phrase defined a legal criterion of such precision that it answered the

question whether, in the present circumstances, a duty of care exists~ I do not understand the wider

concept of proximity to furnish a test for determining whether the particular facts of a case give rise to a

duty of care. In San Sebastian Pty. Ltd. v The Minister (50), 1 explained the difficulties I see in

attempting to apply the wider concept of proximity to the facts of a particular case. Lacking the

specificity of a precise proposition of law, the wider concept remains for me a Delphic criterion,

claiming an infallible correspondence between the existence of the "relationship of proximity" and the

existence of a duty of care, but not saying whether both exist in particular circumstances. When the

existence of a duty in a new category of case is under consideration, the question for the court is

whether there is some factor in addition to reasonable foreseeability of loss which is essential to the

existence of the duty: see Jaensch v. Coffey (51). In many of the new categories of case in which a duty

has been held to exist, reasonable foreseeability of loss has not been sufficient in itself to give rise to a

duty to act or to abstain from acting in order to avoid the loss. In a case where a novel category of duty

is proposed and the factors which determine its existence must be identified, the court may have regard

to a variety of considerations the nature of the activity which causes the loss, the nature of the loss, the

relationship between the parties and contemporary community standards (especially where liability for

breach of the proposed duty would be disproportionate to the risk which a person might reasonably be

expected to bear as an incident of engaging in the particular activity if no limiting factor were


141

identified). In Sutherland Shire Council v Heyman I suggested that it is preferable for the law to

develop new categories of negligence incrementally and by analogy with established categories, for the

established categories provide firm evidence of the kinds of factors which condition the existence of the

various categories of duties. It is one thing to speak in general terms about the considerations which

affect the development of the law; it is another to define the law as developed. In a novel category of

case, when it appears that the proposed duty depends on some factor additional to reasonable

foreseeability of loss, the additional factor must be identified. In my opinion, the identification must be

sufficiently precise to permit the tribunal of fact (whether judge or jury) to ascertain the existence of the

relevant factor or factors: see San Sebastian Pty. Ltd. v The Minister. Indeed, it is only by reference to

factors so precisely identified that it is possible to define the nature and content of the proposed duty.

And it is only by reference to the nature and content of a duty that it is possible to define the elements

of the cause of action in tort for its breach. Having defined the duty of disclosure owed by the custodian

of a deceased testator's will to the executor named in the will, it is necessary next to turn to the elements

in the cause of action for its breach.

**************************

The natural and foreseeable consequence of the solicitors' failure to inform Mr. Hawkins of the will

promptly was that, when Mr. Hawkins accepted the office of executor and came into possession of the

estate, he had lost the benefit of possession of the estate which he would have had as executor if the

solicitors had informed him of the will. That loss must be distinguished from other and different losses

which arose by infringement of the proprietary or possessory rights which devolved on Mr. Hawkins as

executor. The loss caused by the solicitors' breach of duty may be assessed by reference to, but is not,

the rent which ought to have been paid by Mr. Lamb for his unauthorized occupation of the house or the

damage done to the house by unknown vandals or the loss of furniture occasioned by unknown persons

who stole or broke the furniture. The executor may have causes of action against the persons

responsible but he is not required to enforce them in exoneration of the solicitors' liability. What the

plaintiff is entitled to recover from the solicitors is compensation for the loss flowing from the delay in

Mr. Hawkins' taking possession of the estate as executor. The period of his being out of possession by

reason of the solicitors' breach of duty to inform him promptly commences from the time when, if they

had performed their duty, he would have been informed of the will and would have been able to take

possession of the estate; it terminates when he is able to take possession of the estate after being

informed of the will.

*****************************

DEANE J p574 While assumpsit remained in its infancy, an action for breach of the duty of a

solicitor to a client to be skilful and careful lay in case: see per Viscount Haldane L.C., Nocton v Lord

Ashburton; Poulton, "Tort or Contract", Law Quarterly Review, vol.82 (1966), 346, at pp.360-36 I and

Dwyer, "Solicitor's Negligence - Tort or Contract?", Australian Law Journal, vol.56 (1982), 524, at p.

526ff. Subsequently, an action for breach of the duty of care and skill owed by a solicitor in the

performance of professional work for a client came to be seen as lying also, and then exclusively, in

assumpsit or contract: see, generally, the discussion of the authorities contained in the judgment of the

Supreme Court of Canada (delivered by Le Dain J.) in Central Trust Co. v. Rafuse (77) and in the

judgment of Oliver J. in Midland Bank V. Hett. Stubbs and Kemp (78). Thus, in Groom v. Crocker (79),

Sir Wilfrid Greene M.R. commented that the "relationship of solicitor and client is a contractual one ...

It was by virtue of that relationship that the duty [of skill and care] arose, and it had no existence apart

from that relationship". In the same case (80), Scott L.J. said that "the mutual rights and duties" of a

solicitor and his client "are regulated entirely by the contract of employment". The emergence and

development of the modern law of negligence, particularly since the decision in Hedley Byrne & Co.

Ltd. v. Heller & Partners Ltd. (81), inevitably led to a reappraisal of the isolation of a solicitor from the

reach of the ordinary law of negligence in relation to his professional dealings with a client. The clear

trend of modern authority is to support the approach that the duty of care owed by a solicitor to a client

in respect of professional work prima facie transcends that contained in the express or implied terms of

the contract between them and includes the ordinary duty of care arising under the common law of

negligence: see, in particular, Esso Petroleum v. Mardon (82); Midland Bank v. Hett, Stubbs and Kemp

(83); Aluminium Products (Q.) Pty. Ltd. ~. Hill (84); MacPherson and Kelley V. Kevin J Prunty &

Associates (85); Vulic v. Bilinsky (86); Sacca v. Adam (87); Brickhill v. Cooke (88); Central Trust Co.


142

v. Rafuse (89); Finlay V. Murtagh (90);Day V. Mead (91). That approach is also supported by principle

in that, in the context of the general scope of the modern law of negligence to which members of this

Court have long sought to give effect (see, e.g., the earlier cases in this Court referred to in Kackshaw

V. Shaw (92)), there are no acceptable grounds for refusing to recognise the liability of a solicitor in tort

for negligence in the performance of professional work for a client. That liability prima facie

corresponds with what Windeyer J. described in Voli V. Inglewood Shire Council (93), a case

concerning the liability of an architect for negligence in the performance of professional work, as "the

ordinary liabilities of any man who follows a skilled calling". In the course of his judgment, which was

concurred in by the other members of the Court (Dixon C.J. and Owen J.), Windeyer J. went on to

examine the content of those "ordinary liabilities". It suffices, for present purposes, to quote two

extracts from his Honour's judgment (94):

"He is bound to exercise due care, skill and diligence. He is not required to have an

extraordinary degree of skill or the highest professional attainments. But he must bring to the

task he undertakes the competence and skill that is usual among architects practising their

profession. And he must use due care. If he fails in these matters and the person who employed

him thereby suffers damage, he is liable to that person. This liability can be said to arise either

from a breach of his contract or in tort."

***************************************

p 579 The content of the duty of care in a particular case is governed by the relationship of proximity

from which it springs. It may, in some special categories of case, extend to require the taking of positive

steps to avoid physical damage or economic loss being sustained by the person or persons to whom the

duty is owed. Apart from cases involving the exercise of statutory powers or where the person under the

duty has created the risk, the categories of case in which a relationship of proximity gives rise to a duty

of care which may, according to circumstances, so extend are, like those in which there is a duty of care

to avoid pure economic loss, commonly those involving the related elements of an assumption of

responsibility and reliance. The relationship of solicitor and client is, as has been seen, a relationship of

proximity which ordinarily involves the combination of those elements with respect to foreseeable loss

which may be caused to the client by the performance of professional work. It is a relationship of

proximity of a kind which may well give rise to a duty of care on the part of the solicitor which requires

the taking of positive steps, beyond the specifically agreed professional task or function, to avoid a real

and foreseeable risk of economic loss being sustained by the client. Whether the solicitor client

relationship does give rise to a duty of care requiring the taking of such positive steps will depend upon

the nature of the particular professional task or function which is involved and the circumstances of the

case. While the present case is plainly a borderline one and I am conscious of the force of the reasoning

which has led the Chief Justice and Wilson J. to reach a contrary conclusion, it seems to me that, for the

reasons which follow, the solicitors were under a relevant duty to take such positive steps.

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