| Professional
conduct update
Michael
Saadey Abdul-Karim
Tribunal
decisions of 25
June 2003 & 3 September 2003
On
25
June 2003 the Legal Services Division of the Administrative
Decisions Tribunal handed down its findings with respect to two
Informations filed by the Bar Council arising from complaints made
by Mr A Hamod and the Bar Council against Michael Saadey Abdul-Karim.
.
In
respect of Information No. 012009, the Tribunal found Michael Saadey
Abdul-Karim guilty of professional misconduct on seven grounds and
guilty of unsatisfactory professional conduct on one ground.
In
respect of Information No. 012033, the Tribunal found Michael Saadey
Abdul-Karim guilty of professional misconduct on two grounds and
guilty of unsatisfactory professional conduct on two grounds.
On
3
September 2003, the Tribunal handed down its decision on penalty
and costs. The Tribunal ordered:
- that
the name of Michael Saadey Abdul-Karim be removed from the Roll
of Legal Practitioners in New South Wales,
- that
the practising certificate of Michael Saadey Abdul-Karim be
cancelled, and
- that
Michael Saadey Abdul-Karim pay the Association's costs of $98,792.
Michael
Saadey Abdul-Karim appealed the Tribunal's decision. On 17
February 2004 the Appeal Panel handed down its judgment.
The Appeal Panel made the following orders:
- Appeal
dismissed.
- Order
that Michael Saadey Abdul-Karim pay the Bar Association's costs
of the appeal.
On
21 February 2005, the Court
of Appeal heard an appeal by Michael Saadey Abdul-Karim against
the Appeal Panel's decision of 17 February 2004. The Court
of Appeal ordered that the appeal be dismissed with costs.
Tribunal
decisions of 27 March 2003 & 17 June 2003
On
27 March 2003, in respect
of a complaint made by the Bar Council, the Legal Services Division
of the Administrative Decisions Tribunal found Michael Saadey Abdul-Karim
guilty of professional misconduct within the meaning of sec 127
(1) of the Legal Profession Act 1987 in the following
respects:
1.
Michael Saadey Abdul-Karim inserted into a caveat a description
of the alleged interest of his client in land which Michael Saadey
Abdul-Karim knew to be false or misleading, by reason that the Supreme
Court had already determined that such interest was unenforceable
and not properly the subject of a caveat in respect of the land.
2.
Michael Saadey Abdul-Karim inserted into the caveat the expression
'Appeal against judgment of Justice Hamilton', when he had no knowledge
that any such appeal had been brought.
.
On
17
June 2003 the Tribunal handed down its decision on penalty and
costs. The Tribunal ordered:
.
That
Michael Saadey Abdul-Karim undertake at the next available session,
the course of studies offered by The New South Wales Bar Association
Readers course in Ethics, Practice and Procedure and Evidence, AND
that he achieve a performance at examination or assessment (whichever
being applicable to the students at the time) of pass.
.
That
Michael Saadey Abdul-Karim pay the costs of the Association of $33,300.00.
.
Michael
Saadey Abdul-Karim appealed the Tribunal's decision. Subsequently
he sought leave to withdraw his appeal. On 17
February 2004 the Appeal Panel handed down its decision.
The Appeal Panel made the following orders:
.
- That
Michael Saadey Abdul-Karim be granted leave to withdraw his Notice
of Appeal.
- That
Michael Saadey Abdul-Karim pay the Bar Association's costs of
the appeal.
.
The
effect of the Appeal Panel's orders is that the orders made on 17
June 2003 stand.
.
Tribunal
decisions of 22 February 2002 & 13 September 2002
On
22 February 2002 in respect of a complaint made by Mr Costa Layous,
the Legal Services Division of the Administrative Decisions Tribunal
found Michael Saadey Abdul-Karim guilty of unsatisfactory professional
conduct.
On
13 September 2002 , the Tribunal handed down its decision on penalty
and costs. The Tribunal ordered:
-
that Michael Saadey Abdul-Karim be publicly reprimanded,
-
that Michael Saadey Abdul-Karim pay the Association's costs,
and
-
that Michael Saadey Abdul-Karim pay the sum of $1,137
compensation to Mr Costa Layous.
John
Sebastian Amor-Smith
On
5
November 2003 the Legal Services Division of the Administrative
Decisions Tribunal found John Amor-Smith guilty of overservicing
and gross overcharging and made the following declarations and orders:
- that
John Amor-Smith is guilty of professional misconduct;
- that
the name of John Amor-Smith be removed from the Roll of Legal
Practitioners;
- that
John Amor-Smith pay the New South Wales Bar Association's costs
of the proceedings.
Stephen
John Archer
On 23 October 2001, the Bar Council of the NSW Bar Association resolved,
pursuant to secs 38FC and 38FE of the Legal Profession Act 1987,
to cancel the practising certificate of Stephen John Archer.
Wayne
Baffsky
On 1 November 2001, the Bar Council of the New South Wales Bar Association
resolved, pursuant to sec 38FE of the Legal Profession Act 1987,
to cancel the practising certificate of Wayne Baffsky, effective
from midnight on Friday, 9 November 2001 to enable the proper arrangements
of the barrister's affairs.
On
15 July 2002 Wayne Baffsky applied to the Bar Council of
the New South Wales Bar Association for the issue of a practising
certificate for the year ended 30 June 2003. On 18 July 2002, the
Bar Council resolved that, having regard to the changed factual
circumstances since its original decision of 1 November 2001 to
cancel Wayne Baffsky's practising certificate, and the conditions
agreed to by Wayne Baffsky, it would issue a practising certificate
effective from 22 July 2002.
Daniel
James Brezniak
On
28 July 2004 the Legal Services
Division of the Administrative Decisions Tribunal handed down its
findings with respect to an Information filed by the Bar Council
in relation to Daniel James Brezniak.
The
Tribunal found:
There
had been no failure by Daniel James Brezniak to comply with the
requirements of Rule
22
of the New South Wales Barristers' Rules but that Daniel James Brezniak
breached Rule 35 of the New South Wales Barristers' Rules which
in the circumstances amounted to unsatisfactory professional conduct.
On
8 September 2004, the Tribunal
handed down its findings on penalty and made the following orders:
.
- That
Daniel James Brezniak be publicy reprimanded pursuant to sec 171C(1)(e)
of the Act.
- That
Daniel James Brezniak pay one half of the costs of the New South
Wales Bar Association as taxed or agreed.
John
Henry Bryson of the NSW
On
29 January 2003 the Legal Services Division of the Administrative
Decisions Tribunal found John Henry Bryson guilty
of professional misconduct within the meaning of sec 127(1)(b) of
the Legal Profession Act 1987 in that:
(a) on 3 November 1999, John Henry Bryson possessed
a loaded firearm in a public place;
(b) on 3 November 1999, in the same place John Henry Bryson
possessed a pistol not being authorised to do so by a licence or
permit; and
(c) at the same place at the same time, John Henry Bryson
handled a firearm whilst he was under the influence of alcohol.
The
Tribunal made the following orders:
- that
John Henry Bryson be publicly reprimanded.
-
that John Henry Bryson be fined the sum of $10,000.
-
that John Henry Bryson undertake and complete
a course of further legal education by practising under the supervision
of a barrister of at least seven years’ standing approved
by the Bar Association for the period of 12 months, such supervising
barrister being requested to report to the Bar Association as
to the ability of John Henry Bryson to practice
at the end of three months, six months and 12 months. The supervising
barrister to be given a copy of the Tribunal’s reasons.
On
14 July 2003 the Tribunal ordered John Henry Bryson
to pay the Bar Association's costs of the Tribunal proceedings.
John Henry Bryson appealed the Tribunal's decision
of 29 January 2003.
On
23 July 2003 the Appeal Panel ordered that order 3 above be set
aside and otherwise affirmed the findings and orders made by the
Tribunal on 29 January 2003. The Appeal Panel ordered John
Henry Bryson pay the Bar Association’s costs of the
appeal.
John Henry Bryson has not been the holder of a
practising certificate as a barrister in New South Wales since 1
July 2000.
Jan
Peniston Butland
On
24 October 2002 the Bar Council of the New South Wales Bar Association
resolved, pursuant to sec 37 (1)(b) of the Legal Profession Act
1987, to cancel the practising certificate of Jan Peniston
Butland for failure to comply with a condition attached to his
practising certificate. The Bar Council further resolved that the
cancellation would be effective from midnight on 29 November 2002
to enable the proper arrangements of the barrister's affairs.
On
28 November 2002, Jan Peniston Butland applied to the Bar
Council for the issue of a practising certificate for the year ended
30 June 2003. Having regard to the further material submitted by
Jan Peniston Butland since the Bar Council's original decision
of 24 October 2002, and having further regard to the revised conditions
agreed to by Jan Peniston Butland to be attached to his practising
certificate, a practising certificate was issued from 2 December
2002.
Robert
William Cameron
On
1 November 2001 the Bar Council of the New South Wales Bar Association
resolved, pursuant to sec 38FC of the Legal Profession Act 1987,
to cancel the practising certificate of Robert William Cameron,
effective from midnight on Saturday 1 December 2001.
Robert
William Cameron appealed
against the cancellation of his practising certificate pursuant
to sec 38B of the Legal Profession Act 1987. On 9 May 2002
the Court of Appeal made orders which included that the Council
of the New South Wales Bar Association issue Robert William Cameron
with a practising certificate pending the hearing of his appeal.
This order was extended, by consent, on 11 September 2002 to the
hearing of his sec 38B appeal.
On
11 December 2002, Cripps AJ made the following final orders in relation
to Robert William Cameron's sec 38B appeal. The orders were
proposed by Robert William Cameron and not opposed by the
Council of the New South Wales Bar Association:
The
Court orders:
- Appeal
dismissed.
- Plaintiff
to pay the defendant's costs as agreed or assessed.
- That
the plaintiff's practising certificate continue in force and effect
until midnight on 31 December 2002 subject to the plaintiff's
right to practise being restricted to completion of existing and
uncompleted chamber work only in those matters details of which
have been provided (or will be provided) by 4pm on 11 December
2002 to the solicitor's for the defendant.
-
That the Plaintiff's practising certificate be cancelled with
effect from midnight 31 December 2002.
- That
the exhibits be returned.
On
31 July 2003, the Bar Council of The New South Wales Bar Association
resolved, pursuant to sec 38FC of the Legal Profession Act 1987,
to refuse to issue a practising certificate to Robert William
Cameron following receipt of an application for a practising
certificate from Robert William Cameron.
On
14 August 2003 Robert William Cameron appealed
against the Bar Council resolution to refuse to issue to him a practising
certificate to the Supreme Court of New South Wales pursuant to
sec 38B of the Legal Profession Act 1987.
On 14 October 2004 the appeal proceedings were discontinued with no orders for costs. The court was made aware that since the commencement of the proceedings the Bar Council had resolved (on 23 September 2004) to issue Robert William Cameron with a practising certificate for the 2004-2005 year.
Michael
Anthony Coleman
On 15 November 2001, the Bar Council of the New South Wales Bar
Association noted that it had not been able to make a determination
for the purposes of sec 38FC of the Legal Profession Act 1987, with
respect to the notification made by Michael Anthony Coleman.
The Bar Council further noted on that day that an indefinite statutory
suspension of the practising certificate of Michael Anthony Coleman
would follow in accordance with the provisions of sec 38FH of the
Legal Profession Act, from midnight on Tuesday, 27 November 2001.
Section 38FG(2) of the Legal Profession Act 1987 requires the Legal
Services Commissioner to take over the determination of the matter
when a statutory suspension of a practising certificate arises.
On 21 October 2002 the Legal Services Commissioner determined that
the facts and circumstances surrounding the event of which Michael
Anthony Coleman notified were not committed in circumstances
which show that Michael Anthony Coleman is not a fit and
proper person to hold a practising certificate.
On
7 November 2002, the Bar Council of the New South Wales Bar Association
resolved, after having considered the report of the Legal Services
Commissioner, and conditions agreed to by Michael Anthony Coleman
to be attached to his practising certificate, that it would issue
a practising certificate to Michael Anthony Coleman, effective
from 8 November 2002.
John
Daniel Cummins
On 5 April 2001 John Daniel Cummins surrendered his practising
certificate.
On 23 July 2001, as a consequence of disciplinary proceedings brought
by the NSW Bar Association, the name of John Daniel Cummins
was removed from the Roll of Legal Practitioners.
On Friday 31 August 2001
the NSW Court of Appeal declared that John Daniel Cummins
had been guilty of professional misconduct and is not a fit and
proper person to remain on the Roll of Legal Practitioners.
On 2 December 1980. John Daniel Cummins was appointed Queen's
Counsel.
On 5 September 2001 the commission of John Daniel Cummins as a Queen's
Counsel was revoked.
William
Roy Davison
On 1 November 2001, the Bar Council of the New South Wales Bar Association
resolved, pursuant to sec 38FC of the Legal Profession Act 1987,
to cancel the practising certificate of William Roy Davison SC
effective from midnight on Friday, 9 November 2001 to enable the
proper arrangements of the barrister's affairs.
In accordance with paragraph 31 of the New South Wales Bar Association's
Senior Counsel Protocol, William Roy Davison ceased to hold
appointment as Senior Counsel on 9 November 2001 upon the cancellation
of his practising certificate.
On
25 September 2003, the Bar Council of The New South Wales Bar Association
resolved, pursuant to sec 38FC(1) of the Legal Profession Act
1987, to refuse to issue a practising certificate to William
Roy Davison following receipt of an application for a practising
certificate from William Roy Davison.
On
7 November 2005, the Legal
Services Division of the Administrative Decisions Tribunal found
William Roy Davison guilty of professional misconduct
and ordered that:
- the
name of William Roy Davison be removed from the
Roll of Legal Practitioners,
- William
Roy Davison pay the costs of the Bar Association.
Willaim Roy Davison has filed an appeal against the Administrative Decisions Tribunal decision.
On 28 February 2006, the Supreme Court of New South Wales in The Council of The New South Wales Bar Association v Davison [2006] NSWSC 65 made the following declarations and orders:
- A declaration that, since on or about 10 November 2001 until 30 September 2005, the defendant has practised as a barrister without being the holder of a current practising certificate in contravention of s25(1) of the Legal Profession Act 1987.
- An order pursuant to s720(1) of the Legal Profession Act 2004 restraining William Roy Davison from practising as a barrister in contravention of s14(1) of the Legal Profession Act 2004 by:
(a) providing, for a fee, as defined in Schedule 1 (fee), advice involving the application of legal expertise in relation to a claim under any legislation or environmental planning instrument, or at common law;
(b) providing, for a fee, advice involving the application of legal expertise in relation to the preparation and conduct of any proceedings, as defined in Schedule 1 (proceedings);
(c) providing, for a fee, advice involving the application of legal expertise, and including statutory interpretation and the application of case law, in relation to rights and obligations under any legislation or environmental planning instrument or at common law;
(d) providing, for a fee, advice involving the application of legal expertise in relation to the evidence of any expert or other witness in connection with a claim under any legislation or environmental planning instrument, or at common law, or proceedings;
(e) providing, for a fee, advice involving the application of legal expertise in relation to a decision, judgment, order or determination in proceedings.
In this order, the terms ‘fee’ and ‘proceedings’ have the following definitions:
.
‘Fee means any hourly or daily remuneration, payment for reimbursement of expenses, retainer, salary, success fee, expectancy, direction of remuneration to a company for the provision of services by the defendant, or other form of valuable consideration.
.
Proceedings means proceedings in any court, including any body described as a court, or any other judicial or statutory tribunal, statutory investigation, mediation, or compromise negotiation.’
.
The Supreme Court noted that in accordance with s14(3) of the Legal Profession Act 2004, nothing in its order is intended to interfere with the performance of any general legal work by William Roy Davison for Walker Corporation Pty Limited, insofar as it is done by him:
(a) in his capacity as an employee of Walker Corporation Pty Limited; and
(b) in the ordinary course of his employment by Walker Corporation Pty Limited; and
(c) for which he receives no fee, gain or reward for so doing other than his ordinary remuneration as an employee of Walker Corporation Pty Limited.
On 19 July 2006, the supreme Court in The Council of The NSW Bar Association v Davison [2006] NSWSC 699 made the following declaration and order:
- A declaration that the conduct of the defendant referred to and set forth in paragraphs [147] to [149] inclusive (including that set out in the schedule to the judgment) was done wilfully and without reasonable excuse, and accordingly, that the defendant was guilty of professional misconduct within the meaning of s25(4) of the Legal Profession Act 1987 from on or about 10 November 2001 until on or about 14 September 2005.
- An order that the defendant pay the plaintiff's costs of the proceedings.
.
Bruce
Leicester Donnelly
.
On
9 January 2003 the Legal Services Division of the Administrative
Decisions Tribunal delivered a judgement in respect of 3 Informations
the Bar Council had filed against Bruce Leicester Donnelly.
.
.The
Tribunal found as follows:
.
In
respect of the first Information Bruce Leicester Donnelly
is guilty of unsatisfactory professional conduct for:
(a) failing to make satisfactory arrangements for representation
of a client while he was overseas;
.
(b)
filing process on behalf of a client in a court in his own name;
.
(c)
failing to make disclosures to direct access clients as required
by the New South Wales Barristers’ Rules;
.
(d)
failures to make fee disclosures as required by the Legal Profession
Act 1987;
.
(e)
witnessing affidavits contrary to the provisions of the NSW Oaths
Act ; and
.
(f)
serving court process and related breaches of New South Wales Barristers’
Rule 75.
.
In
respect of the second Information Bruce Leicester Donnelly
is guilty of unsatisfactory professional conduct for:
(a) failing to appear on behalf of a client; and for
.
(b)
failing to make satisfactory arrangements for a client to be represented
at a court hearing.
.
In
respect of the third Information Bruce Leicester Donnelly
is guilty of professional misconduct in that :
(a) he practised as a barrister without being the holder of a practising
certificate as a barrister at the relevant time; and
.
(b)
that he misled the Bar Association when completing an application
for a practising certificate.
.
. The
Tribunal made the following orders:
.
- that
Bruce Leicester Donnelly be publicly reprimanded;
- that
the Bar Association not issue a practising certificate to Bruce
Leicester Donnelly before 1 March 2003; and
- that
Bruce Leicester Donnelly undertake and complete over the
next two calendar years, a course of further education comprising
30 hours of seminars in continuing professional development conducted
or accredited by the New South Wales Bar Association and satisfy
the Bar Association that he has attended those courses.
.
On
5 June 2003 the Bar Council resolved pursuant to secs 38FD(1) and
38FE(1)(b) of the Legal Profession Act 1987 to refuse to
issue a practising certificate to Bruce Leicester Donnelly.
.
On
31 May 2004 the Legal Services
Division of the Administrative Decisions Tribunal delivered a judgment
with respect to an Information the Bar Council filed on 25 September
2003 against Bruce Leicester Donnelly.
.
The
Tribunal found Bruce Leicester Donnelly guilty
of professional misconduct on both grounds in the Information, namely:
.
- Bruce
Leicester Donnelly
failed, without reasonable cause, when he applied for a practising
certificate on 25 February 2003, to notify the Bar Council that
he had been convicted of two tax offences, as required by clause
7(1)(g) of the Legal Profession Regulation 2002; and
- Bruce
Leicester Donnelly
failed, when he applied for a practising certificate on 25 February
2003, to notify the Bar Council that he had been convicted of
two tax offences, as required by clause 7(1)(g) of the Legal
Profession Regulation 2002.
.
On
31 August 2004 the Tribunal
handed down its decision on penalty and costs. The Tribunal ordered
as follows :
.
- that
a practising certificate not be issued to Bruce Leicester Donnelly
before 26 February 2005;
- that Bruce
Leicester Donnelly pay the costs of the Council of The New South
Wales Bar Association on a party/party basis.
.
Paul
Evans
On 1 November 2001 the Bar Council of the New South Wales Bar Association
resolved, pursuant to sec 38FE of the Legal Profession Act 1987,
to cancel the practising certificate of Paul Evans effective
from midnight on Friday, 7 December 2001, to enable the proper arrangement
of the barrister's affairs.
.
Richard
Anthony Greenaway
On
30 July 2002,
and upon the following admissions made by
Richard Anthony Greenaway:
(a)
that he failed to inform his instructing solicitors of the outcome
of an appearance made by him in the Local Court on 4 December 1997;
(b) that he failed to respond to numerous communications both in
writing and by telephone made to him by his instructing solicitor
between 4 December 1997 and 2 March 1998; and
(c) that he failed to inform his instructing solicitor of the substance
of a discussion with his clients on 2 March 1998, wherein he conveyed
his advice in relation to a non suit,
the
Legal Services Division of the Administrative Decisions Tribunal
found Richard Anthony Greenaway guilty of unsatisfactory
professional conduct and ordered that Richard Anthony Greenaway
be publicly reprimanded and pay the Association's costs
of $12,000 within 6 months.
John Peter Hart
On 5 April 2006, the Administrative Decisions Tribunal delivered judgment in respect of an Information filed by the Bar Council against John Peter Hart.
The Tribunal found John Peter Hart guilty on ground five of the Information of professional misconduct and guilty on grounds one to four of the Information of unsatisfactory professional conduct. The Tribunal ordered that John Peter Hart:
- Be publicly reprimanded.
- Be fined $4,000 to be paid within three months; if not so paid Hart's practising certificate to be cancelled and not re-issued until the fine is paid.
- Pay the Bar Association's costs as agreed or assessed.
John
Edmund Higgins
On 15 November 2001 the Bar Council of the New South Wales Bar Association
resolved, pursuant to sec 38FE of the Legal Profession Act 1987,
to cancel the practising certificate of John Edmund Higgins,
effective from midnight on Friday, 23 November 2001, to enable the
proper arrangement of the barrister's affairs.
.
Alexander
Stanislaw Howen
.
On
20 May 2003, in two separate decisions, [first]
[second],
the Legal Services Division of the Administrative Decisions Tribunal
found Alexander Stanislaw Howen guilty of professional misconduct.
The Tribunal found that the failure by Alexander Stanislaw Howen
to comply with a Notice issued pursuant to sec 152 of the Legal
Profession Act 1987 in each matter was without reasonable cause
and therefore by reason of sec 152 (4) of the Act, it was professional
misconduct.
On 24 October 2003 the Tribunal handed down its decision on penalty
and costs with respect to its two earlier findings of professional
misconduct. In each of matters 012005
and 012030 the Tribunal ordered that Alexander Stanislaw Howen:
.
- be
publicly reprimanded, and
- pay
the Bar Association's costs as agreed or taxed.
.
Maurice
Gordon Kriss
On 20 December 1995, pursuant to disciplinary proceedings instituted
by the Bar Council of the New South Wale Bar Association, the Legal
Profession Tribunal (as it then was) ordered that the name of Maurice
Gordon Kriss be removed from the roll of legal practitioners.
.
The
Legal Practitioners' Board refused to approve a subsequent application
by Maurice Gordon Kriss for readmission.
.
Maurice
Gordon Kriss appealed to the Supreme Court of New South Wales pursuant
to sec 14 of the Legal Profession Act, 1987, against the Legal Practitioners'
Admission Board's refusal to approve his application for readmission.
The first defendant, the Legal Practitioners' Admission Board, filed
a submitting appearance and the New South Wales Bar Association
appeared as second defendant.
On 18 October 2002 Cooper
AJ of the Supreme Court of New South Wales made the following orders:
1. That the appeal be allowed.
2. That subject to the condition that he undertake and successfully
complete the Bar Association's Readers' Course, the application
of Maurice Gordon Kriss for admission as a legal practitioner
be approved.
Nicholas
Luke McCaffery
Pursuant
to a protocol with the Supreme Court of New South Wales, on 24 January
2004 the Bar Council referred to the Prothonotary of the Supreme
Court of New South Wales information regarding Nicholas
Luke McCaffery practising as a barrister whilst not holding
a current practising certificate as a barrister.
On
17 December 2004, in proceedings
brought by the Prothonotary of the Supreme Court of New South Wales
against Nicholas Luke McCaffery, the New South
Wales Court of Appeal, declared Nicholas Luke McCaffery
guilty of professional misconduct in that:
.
- on 29 occasions between 8 August 2002 and 11 December 2003 he
practised as a barrister whilst not holding a current practising
certificate as a barrister in contravention of s25(1) of the Legal
Profession Act 1987, and
- held himself out to be a barrister whilst not holding a current
practising certificate as a barrister in contravention of s25(4)
of the Legal Profession Act 1987, and
.
The Court
of Appeal ordered that the name of Nicholas Luke McCaffery
be removed from the Roll of Legal Practitioners of the Supreme Court
of New South Wales.
.
On
16 June 2005, in proceedings brought by the Prothonotary of the
Supreme Court of New South Wales, the Supreme Court convicted Nicholas
Luke McCaffery of 29 counts of contempt constituted by
29 appearances by him in various courts as a barrister while he
did not hold a current practising certificate.
On
3 November 2005, the Supreme
Court sentenced Nicholas Luke McCaffrey:
.
- on each of charges 1 to 4, to 9 months imprisonment with a non-parole
period of 6 months,
- on each of charges 5 to 12 to 10 months imprisonment with a
non-parole period of 5 months, and
- on each of charges 13 to 29to 12 months imprisonment with a
non-parole period of 6 months.
The
Supreme Court suspended the sentences of imprisonment subject to
Nicholas Luke McCaffery entering bonds under s12
of the Crimes (Sentencing Procedure) Act 1999 to be of
good behaviour and to appear before the Court at any time if called
upon to do so.
Timothy Meakes
On 8 March 2006 the Legal Services Division of the Administrative Decisions Tribunal handed down its findings and penalty with respect to an Information filed by the Council of The New South Wales Bar Association in respect of Timothy Meakes.
The Tribunal found Timothy Meakes guilty of unsatisfactory professional conduct on two grounds: (1) gross overcharging, and (2) failing to provide a fee agreement or a fee disclosure as required by Part 11 of the Legal Profession Act 1987.
The Tribunal ordered that Timothy Meakes be publicly reprimanded, and that Timothy Meakes pay the Bar Council’s costs as agreed or assessed.
On 6 December 2006 the Court of Appeal delivered its judgment in The Council of NSW Bar Association v Meakes [2006] NSWCA 340. The Court of Appeal allowed the Bar Council's appeal and set aside the orders made by the Administrative Decisions Tribunal on 8 March 2006.
The Court of Appeal found Timothy Meakes guilty of: (1) professional misconduct with respect to the first ground of gross overcharging and (2) unsatisfactory professional conduct with respect to the second ground of failing to provide a fee agreement or a fee disclosure as required by Part 11 of the Legal Profession Act 1987.
The Court of Appeal ordered that Timothy Meakes be publicly reprimanded and pay the Bar Council's costs of the Tribunal proceedings and the appeal proceedings.
Richard
Mitry
Richard Mitry's practising certificate expired on 30 June 1996.
That practising certificate was not renewed.
On 26 September 2002 the Legal Services Division of the Administrative
Decisions Tribunal delivered its judgment in the matter of the Council
of the New South Wales Bar Association v Richard Mitry.
The Tribunal found that Richard Mitry was guilty of professional
misconduct and made the following orders:
1.
that Richard Mitry be publicly reprimanded;
2. the Bar Association shall not issue an unrestricted practising
certificate to Richard Mitry until he has satisfactorily completed
the Bar
Association Reading Program and the Bar Practice Course;
3. Richard Mitry is to complete, over the next 2 years, a minimum
of 20 hours in each year of continuing legal education in courses
recommended by the Bar Association and satisfy the Bar Association
that he has attended those courses;
4. Richard Mitry is to pay the costs of the Bar Association of
the proceedings as agreed or assessed.
Barry
James Murphy
On 15 November 2001 the Bar Council of the New South Wales Bar Association,
resolved, pursuant to sec 38FE of the Legal Profession Act 1987,
to cancel the practising certificate of Barry James Murphy,
effective from midnight on Friday, 23 November 2001. Barry James
Murphy appealed against the cancellation. The appeal was heard
before Justice McClellan and was upheld.
The Bar Association appealed Justice McClellan's decision.
On 28 June 2002, the Court
of Appeal dismissed the Association's appeal against McCLellan J's
decision upholding Mr Murphy's appeal to the Supreme Court of NSW
under sec 38B of the Legal Profession Act 1987.
Barry James Murphy's practising certificate was reissued on 21 December
2001.
Dr
Van Thieu Nguyen
On 15 June 2000 the Bar Council of the New South Wales Bar Association
resolved, pursuant to sec 37(1)(a) of the Legal Profession Act 1987,
to cancel the practising certificate of Dr Van Thieu Nguyen.
On 13 August
2001 the Legal Services Division of the Administrative Decisions
Tribunal ordered that the name of Dr Van Thieu Nguyen be
removed from the Roll of Legal Practitioners.
On
16
December 2002 the Legal Services Division of the Administrative
Decisions Tribunal made, inter alia, an order that Dr Van Thieu
Nguyen be found guilty of professional misconduct with respect
to the conduct contained in Ground 1 of the Information filed 31
May 2001 by the Council of The Bar Association of New South Wales
that between 18 December 1998 and 30 December 1998 he received,
in the course of practising as a barrister, money on behalf of another
person.
On
10 April 2003 the Tribunal considered the issue of penalty and costs.
The Tribunal made the following orders:
- That Dr Van Thieu Nguyen pay a fine of $15,000
- That Dr Van Thieu Nguyen be publicly reprimanded
- That Dr Van Thieu Nguyen pay the costs of the Bar Council.
.
Kofi
Ameyaw Osei
The
Legal Services Division of the Administrative Decisions Tribunal
handed down its decision on 3
February 2006 in respect of three Informations filed by the
Bar Council in relation to Kofi Ameyaw Osei which were heard jointly.
The
Administrative Decisions Tribunal:
- dismissed
Information 042010
- found
Kofi Ameyaw Osei guilty of professional misconduct in providing
false and misleading responses to the Bar Council by letter dated
28 June 2002
- found
Kofi Ameyaw Osei guilty of unsatisfactory professional conduct
in failing to advance and protect the interests of the two clients
in the Refugee Review Tribunal.
Matters
2 and 3 are listed on 2 March 2006 for directions in relation to
penalty.
Bryan
Francis Rowe
On
6 October 2005 the Bar Council of The New South Wales Bar Association
noted that it was unable to make a determination under s38FC and
s38FE of the Legal Profession Act 1987 with respect to the notification
made by Bryan Francis Rowe.
The
Bar Council further noted that an indefinite statutory suspension
of the practising certificate of Bryan Francis Rowe would follow
in accordance with the provisions of s38FH of the Legal Profession
Act 1987 from midnight on Saturday, 29 October 2005.
On
17 January 2006 the Acting Legal Services Commissioner determined
that Bryan Francis Rowe is a fit and proper person to hold a local
practising certificate but that it is appropriate to impose financial
management conditions on Rowe's local practising certificate and
on any local practising certificate held by Bryan Francis Rowe with
respect to any period up to and including 30 June 2010.
On
6 February 2006 the Bar Council issued a local practising certificate
to Bryan Francis Rowe with conditions attached, being those determined
by the Acting Legal Services Commissioner.
Wayne Edward Russell
On 2 November 2006 the Council of The New South Wales Bar Association resolved that it was unable to make a determination under s68(3) of the Legal Profession Act 2004 in respect of the notification of a show cause event by Wayne Edward Russell. The Bar Council further noted that an indefinite statutory suspension of Wayne Edward Russell's practising certificate would follow with effect from midnight on 6 November 2006, pursuant to s70 of the Legal Profession Act 2004.
Marcel
Victor Sahade
On 13
July 2005, in respect of a complaint made by the Bar Council,
the Legal Services Division of the Administrative Decisions Tribunal
found Marcel Victor Sahade guilty of professional misconduct within
the meaning of sec 127 (1)(b) of the Legal Profession Act 1987 in
respect of each of the 2 grounds of the Information, namely:
- “In
July and August 1999 Marcel Victor Sahade lodged 353 applications
to pre-register for shares in the so-called ‘Telstra 2 Share
Offer’ using dishonest tricks and devices for the purpose
of concealing the fact that the applications were multiple applications
by a single person, in circumstances where he believed the policy
of the Commonwealth would be likely to be to reject multiple applications
for pre-registration from the same person.”
- “Between
about 17 and 19 September 1999, Marcel Victor Sahade lodged 215
applications, each for 400 shares in the ‘Telstra 2 Share
Offer’, as a pre-registered public applicant, using dishonest
tricks and devices for the purpose of concealing the fact that the
applications were multiple applications by a single person.”
The Tribunal
found the conduct of Marcel Victor Sahade as alleged in grounds
1 and 2 has been established, that the conduct occurred otherwise
than in connection with the practice of law and that Marcel Victor
Sahade was not, at the time of the conduct, a fit and proper person
to remain on the roll of legal practitioners.
The Tribunal
found Marcel Victor Sahade is not of good fame and character.
The Tribunal's decision on penalty was delivered on 8 February 2006. The Tribunal ordered:
that Sahade pay a fine of $10,000 and be publicly reprimanded; and
- that Sahade pay the costs of the Bar Council in the proceedings.
.
The Bar Council has appealed against the decision of the Tribunal delivered on 8 February 2006. Sahade has filed a cross appeal.
Frank
Santisi
On
8 July 2005 the Administrative
Decisions Tribunal found Frank Santisi guilty of three counts of
unsatisfactory professional conduct:
-
receiving
money on behalf of another person contrary to s38P of the Legal
Profession Act 1987;
- failure
to notify the Legal Aid Commission of a change in the means or
circumstances of his client;
- failure
to provide any or any amended costs disclosure as required by
Part 11 of the Legal Profession Act 1987.
At
the time the Tribunal handed down its decision on 8 July 2005, Santisi's
name was anonimised using the initials 'LH', in accordance with
Practice Note 13. However, the hearing of the two Informations on
20 and 21 June 2005 was held in public and in the Tribunal's subsequent
decision on penalty (see below) delivered on 9 January 2006, the
Tribunal noted that in reading the 9 January 2006 decision, it was
possible to cross- reference the decision of 8 July 2005, which
appears on the Tribunal's website. Submissions and decision on penalty
were deferred.
On
9 January 2006, the Administrative
Decisions Tribunal made orders that:
- Santisi
be publicly reprimanded;
- Santisi
undertake the modules described as Engagement, Management and
Maximising Costs Recover and Risk Awareness, conducted by LawCover
as part of its Risk Management Education Program, at the next
available session;
- Santisi
pay the costs of the Bar Association as agreed or taxed.
After
hearing submissions, the Tribunal agreed to publish both the decision
and reasons on penalty and the barrister's name. The Tribunal indicated
it did not intend to republish the decision of 8 July 2005, but
noted that in reading the 9 January 2006 decision, it was possible
to cross reference the decision of 8 July 2005, which appears on
the Tribunal's website.
Trevor
Newton Small
On 9 November 2001 the Bar Council of the New South Wales Bar Association
resolved, pursuant to sec 38FC of the Legal Profession Act 1987,
to cancel the practising certificate of Trevor Newton Small.
Trevor Newton Small appealed, pursuant to sec 38B of the
Legal Profession Act 1987, against the cancellation. On 21 November
2001 the Supreme Court of New South Wales ordered that the cancellation
was effective but granted a stay of the cancellation up to and including
14 December 2001.
On 18 April 2002, Trevor Newton Small applied to the Bar
Council for the issue of a practising certificate for the year ended
30 June 2002. On 9 May 2002 the Bar Council resolved that, having
regard to the changed factual circumstances since its original decision
of 1 November 2001 to cancel his practising certificate and the
conditions agreed to by Trevor Newton Small, it would issue
a practising certificate to Trevor Newton Small from 27 May
2002.
Mark
Duncan Smith
On
19 May 2003, the Legal Services Division of the Administrative Decisions
Tribunal found Mark Duncan Smith guilty of unsatisfactory professional
conduct and made the following orders:
- Mark Duncan Smith be publicly reprimanded.
- Mark Duncan Smith pay to Graham Harrison compensation in the
sum of $1,000 within 28 days.
- Mark Duncan Smith pay the costs of the Bar Council as agreed
or assessed.
.
On
2 December 2004 the Bar Council of The New South Wales Bar Association
noted that it was unable to make a determination under s38FC and
s38FE of the Legal profession Act 1987 with respect to
the notifications made by Mark Duncan Smith.
The Bar Council further noted an indefinite statutory suspension
of the practising certificate of Mark Duncan Smith
would follow in accordance with the provisions of s38FH of the Legal
Profession Act 1987 from midnight on Sunday, 12 December 2004.
Lawrence
Robert Somosi
On
15 June 2001 the Bar Council of the New South Wales Bar Association
resolved, pursuant to sec 37 (1)(a) and sec 37(1)(f) of the Legal
Profession Act 1987,to cancel the practising certificate of (Lawrence)
Robert Somosi.
On 20 August 2001 the NSW Court of Appeal, as a consequence of disciplinary
proceedings brought by the NSW Bar Association, ordered that the
name of (Lawrence) Robert Somosi be removed from the Roll
of Legal Practitioners
On 31 August 2001 the NSW
Court of Appeal, declared that (Lawrence) Robert Somosi had
been guilty of professional misconduct and is not a fit and proper
person to remain on the Roll of Legal Practitioners.
Notwithstanding the order of the Court of Appeal of 20 August 2001
that the name of (Lawrence) Robert Somosi be removed from the Roll
of Legal Practitioners , the Bar Council of the New South Wales
Bar Association commenced further proceedings in February 2002 in
the Legal Services Division of the Administrative Decisions Tribunal
with respect to (Lawrence) Robert Somosi. On 30
December 2002 the Tribunal delivered its judgment in the matter
of Council of the New South Wales Bar Association v Lawrence Robert
Somosi.
The
Tribunal found that Lawrence Robert Somosi was guilty of professional
misconduct in respect of two counts, namely:
- Failing to appear at a sentence hearing before His Honour Judge
Kirkham on 6 April 1998; and
- Failing to honour an undertaking he gave to the Family Court on
3 February 1995 in respect of proceedings involving his former wife.
Noting
that Mr Somosi's name had already been removed from the Roll of
Legal Practitioners, the Tribunal ordered:
- In relation to each matter, that Lawrence Robert Somosi be publicly
reprimanded;and
- Lawrence Robert Somosi pay the costs of the Bar Association.
Clarence
James Stevens
Proceedings
for Name to be Removed from the Roll of Legal Practitioners
On
9 September 2003,
the Court of Appeal made the following declarations and orders:
•
That Clarence James Stevens has
been guilty of professional misconduct.
•
That Clarence James Stevens is not
a fit and proper person to remain on the Roll of Legal Practitioners.
•
That the name of Clarence James
Stevens be, and hereby is, removed from the Roll of Legal Practitioners.
•
That Clarence James Stevens pay
the costs of and incidental to the proceedings.
Clarence
James Stevens did not oppose the making of the above declarations
and orders. The Court of appeal delivered its Reasons for Judgment
on 18
September 2003.
Proceedings
in Supreme Court appealing against cancellation of practising certificate
Following the orders made by the Court of Appeal on 9 September
2003, that the name of Clarence James Stevens be removed from the
Roll of Legal Practitioners, the appeal filed by Clarence James
Stevens pursuant to sec 38B of the Legal Profession Act 1987
against the decision of the Bar Council to cancel his practising
certificate was, without admission of liability, dismissed by consent.
An order was made that Clarence James Stevens pay the costs of the
Bar Association.
On
22 October 2003 the Governor of New South Wales revoked the appointment
of Clarence James Stevens as one of Her Majesty's Counsel.
Timothy
Leigh Thomas
On
15 November 2001, the Bar Council of the New South Wales Bar Association
noted that it has not been able to make a determination for the
purposes of sec 38FC of the Legal Profession Act 1987
with respect to matters notified by Timothy Leigh Thomas
. The Bar Council further noted that an indefinite statutory
suspension of the practising certificate of Timothy Leigh
Thomas would follow from midnight on Tuesday, 27 November
2001 in accordance with the provisions of sec 38FH of the Legal
Profession Act 1987.
Pursuant to sec38FG(2), the matter was referred to the Legal Services
Commissioner to take over determination of the matter under sec
38FC.
On
3 October 2002 the Legal
Services Division of the Administrative Decisions Tribunal found
Timothy Leigh Thomas guilty of unsatisfactory professional conduct.
On
16 May 2003 the Tribunal
ordered that Timothy Leigh Thomas:
- be publicly reprimanded,
- pay compensation in the sum of $4,000 to the Director of Public
Prosecutions, and
-
pay a portion of the costs of The New South Wales Bar Association.
.
Timothy Macarthur Wardell
On 30 November 2006 the Council of The New South Wales Bar Association resolved, pursuant to s61(2)(c)(ii) of the Legal Profession Act 2004, to suspend the practising certificate of Timothy Macarthur Wardell with effect from 8 December 2006.
On 7 February 2007 the suspension of the practising certificate of Timothy Macarthur Wardell was lifted.
.
Glenn
Noel Whitehead
.
On
1 November 2001, the Bar Council of the New South Wales Bar Association,
resolved, pursuant to sec 38FC of the Legal Profession Act 1987,
to cancel the practising certificate of Glenn Noel Whitehead
effective from midnight on Friday, 9 November to enable the proper
arrangements of the barrister's affairs.
.
Glenn
Noel Whitehead has appealed, pursuant to sec 38B of the Legal
Profession Act 1987, against the cancellation of his practising
certificate.
.
On
19 December 2002 the Supreme Court of New South Wales made the following
orders by consent and without admissions:
.
- Appeal
upheld.
- That
there be attached to the current practising certificate issued
to Glenn Noel Whitehead for the period up to and including
30 June 2003 those conditions referred to in the Bar Council resolution
made 21 November 2002 which were agreed to by Glenn Noel Whitehead.
- That
the Bar Association pay Glenn Noel Whitehead's costs in
the sum of $1,243.97.
- Summons
otherwise dismisssed.
- Note
that on 3 December 2003 Glenn Noel Whitehead agreed to
there being attached to any current practising certificate and
to any practising certificate issued thereafter for any period
up to 30 June 2006 those conditions set out in the Bar Council
resolution made 21 November 2002.
.
Gregory
John Willis
.
On
1 November 2001 the Bar Council of the New South Wales Bar Association,
resolved, pursuant to sec 38FC of the Legal Profession Act 1987,
to cancel the practising certificate of Gregory John Willis,
effective from midnight on Friday, 16 November to enable the proper
arrangements of the barrister's affairs.
.
On
7 August 2003 the Law Society of New South Wales issued Gregory
John Willis with a practising certificate as a solicitor
and barrister.
.
Andrew
Hamilton Young
.
On
31 January 2002 the Bar Council of the New South Wales Bar Association
resolved, pursuant to sec 38FC of the Legal Profession Act 1987,
to cancel the practising certificate of Andrew Hamilton Young
effective from midnight on Wednesday 6 March 2002.
The Bar Council further resolved to make an application to the Supreme
Court of New South Wales for removal of Andrew Hamilton
Young's name from the Roll of Legal Practitioners.
.
On
19 August 2003 the Court
of Appeal delivered judgment in proceedings commenced by the Bar
Association against Andrew Hamilton Young. The
Court declared that Andrew Hamilton Young is not
a fit and proper person to remain on the Roll of Legal Practitioners
and ordered that the name of Andrew Hamilton Young
be removed from the Roll of Legal Practitioners.
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