REASONS FOR DECISION

1. The Council of the New South Wales Bar Association (‘the Council’) has brought an Application for disciplinary findings and orders against EFA, a barrister, in relation to a complaint about his alleged conduct at a dinner in 2017 for barristers’ clerks, at which some barristers, including EFA, were guests. The Application is brought under the Legal Profession Uniform Law (NSW) (‘the Uniform Law’).

2. At the hearing of Stage 1 of the matter (see [71]), the Tribunal was provided by the parties with a joint book of documents, containing numerous affidavits. The complainant, H, and barristers A and G gave evidence in the Council’s case. EFA gave evidence in his own case. CCTV footage taken from two cameras of the dining room which was the venue for the dinner was shown in the course of the hearing.

3. A non-disclosure order was sought by the Council and was made early in the proceedings. The Civil and Administrative Tribunal Act 2013 (NSW), in s 64, provides as follows:

64   Tribunal may restrict disclosures concerning proceedings

(1)  If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders—

(a)  an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),

(b)  an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal,

(c)  an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

(d)  an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

(2)  The Tribunal cannot make an order under this section that is inconsistent with section 65.

(3)  The Tribunal may from time to time vary or revoke an order made under subsection (1).

(4)  For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

4. The non-disclosure order was made on account of the sensitive nature of the allegations, particularly to protect the identity of the complainant. We have continued the order, in a slightly amended form, for Stage 1, for the same reason. There has been no application for any change to the non-disclosure order.

The Application – factual allegations

5. The Application recites the following complaint and particulars:

C   COMPLAINT

The Respondent is guilty of professional misconduct, or in the alternative, unsatisfactory professional conduct, as the Respondent engaged in sexually inappropriate conduct in that, on 21 July 2017 when attending a function attended by barristers' clerks and (by invitation) barristers, the Respondent made sexually inappropriate advances, including gestures, physical contact and words spoken, to an assistant clerk, H, and to another in her presence.

D   PARTICULARS OF COMPLAINT

Practice history

…

The Dinner

2.   On 21 July 2017 a dinner was held at Doltone House, Jones Bay Wharf as part of the New South Wales Barristers Clerks' Conference (Dinner).

3.   Attendance at the Dinner was restricted to clerks, barristers and other guests invited by clerks, guest speakers and sponsors.

4.   The Dinner was attended by the Respondent and H.

5.   The Respondent sat at a table with barristers practising from Floor X, his clerk and clerks from other floors.

6.   H sat at a different table with W, clerk to Floor Y and barristers practising from Floor Y.

Respondent's Conduct

7.   Just prior to 11:00pm the Respondent, accompanied by C, approached H’s table.

8.   The Respondent did not know H.

9.   The Respondent approached H’s table from the left of H.

10.   As the Respondent approached H’s table, the Respondent stuck his middle finger of his right hand up and towards A.

11.   A covered his eyes with his left hand and stuck the middle finger of his right hand up and towards the Respondent.

12.   The Respondent:

(a)   stood between A and H;

(b)   faced A;

(c)   grasped A’s head with his hands; and

(d)   pulled A’s head face first backwards and forwards towards the Respondent's crotch.

13.   The actions of the Respondent and A referred to in paragraph 12 above occurred within the sight of H.

14.   The Respondent moved behind A. A, remaining seated, leant back towards the Respondent, raised his arms and patted the Respondent's right shoulder and left chest.

15.   H turned away from the Respondent and A.

16.   The Respondent subsequently moved to a position standing between and slightly behind A and H.

17.   H remained seated and was looking down towards the table.

18.   The Respondent leaned towards H and placed his left hand on the back of her head.

19.   The Respondent's body was turned towards H.

20.   The Respondent placed his right hand near his crotch.

21.   The Respondent guided H’s head towards his crotch.

22.   At the time the Respondent engaged in the conduct referred to in paragraphs 18 to 21 above, the Respondent said to H words to the effect of "suck my dick".

6. EFA, in his Reply, admits paragraphs 9, 10, 11, 12, 13 and 14 of the Application.

7. EFA, in his Reply, pleads as follows in relation to the other substantive allegations of fact:

7.   As to paragraph 15, the Respondent:

(a)   says that whilst the Respondent was standing behind A engaging in the conduct referred to in paragraph 14 of the Application, H turned her head slightly away from the Respondent and A;

(b)   otherwise, denies the paragraph.

8.   The Respondent admits paragraph 16 and says that the effect of his standing slightly behind H was that he, A and H were standing in a triangle formation conducive to conversation.

9.   As to paragraph 17, the Respondent:

(a)   admits that H remained seated;

(b)   says that H looked towards the table;

(c)   otherwise, does not admit the paragraph.

10.   As to paragraph 18, the Respondent:

(a)   admits that he leant slightly towards H;

(b)   says the he lightly touched H's hair;

(c)   otherwise, denies the paragraph.

11.   The Respondent admits paragraph 19.

12.   The Respondent denies paragraph 20 and says that:

(a)   the allegation in paragraph 20 was not part of the Applicant's complaint made against the Respondent on 30 August 2018 and was not part of the complaint which was the subject of the Applicant's resolution on 6 June 2019;

(b)   the Applicant cannot have reached the opinion that the allegation in paragraph 20 is an element of conduct which may amount to:

(i) unsatisfactory professional conduct that would be more appropriately dealt with by the designated tribunal; or

(ii) professional misconduct;

as required by section 300 of the Legal Profession Uniform Law (NSW); and

(c)   the allegation in paragraph 20 is therefore beyond the scope of the proceedings to be determined by the Tribunal and ought to be withdrawn.

13.   As to paragraph 21, the Respondent:

(a)   denies the paragraph;

(b)   says that on 17 April 2018, the Applicant's Professional Conduct Committee determined that the Respondent:

'did not appear to hold the back of [H's] head nor move her head to and from his crotch area'.

Standard of Proof

8. The standard of proof required to establish the allegations the subject of the Application is proof on the balance of probabilities. Given that there is a sexual aspect to the allegations, and bearing in mind the range of possible consequences of adverse findings, only clear and cogent evidence will be capable of meeting the standard of proof required (see Briginshaw v Briginshaw (1938) 60 CLR 336).

Evidence

9. H made a statement on 25 July 2017, four days after the dinner the subject of the Application (H’s initial statement). The statement is mostly consistent with the allegations in the Application, except that there is nothing about EFA placing his right hand near his crotch when he had his hand at the back of H’s head.

10. Paragraphs 8 to 11 of H’s initial statement said (referring to EFA as “the Barrister”):

8.   When I turned my head back next thing I knew, the barrister was standing over me as I was sitting in my chair. He took hold of the back of my head with one hand and started to move my head to and from his crotch area. While he did this he said “suck my dick”.

9.   This went on for about three seconds. It took me a few seconds to get over the shock of what was happening. I then pulled away while still sitting. I remember I then awkwardly looked at [A] who also looked very awkward and embarrassed.

10.   After I had pulled away the Barrister said to me in an attempted humorous way “oh don’t complain about me to the Bar Association”.

11.   I remember saying something like, “What the fuck”, to him and in the general direction of [A]. [A] shook his head, motioned towards the Barrister and said “he needs to go”. I don’t know what, or how much [A] saw of what happened. I assumed he did though he may have been sitting behind the Barrister when it occurred.

11. H left the table shortly after the incident and looked for the clerk of the Chambers at which she was employed, W. When she found him, outside the venue, she gave him an account of what had happened at the table. She told him that she felt angry, upset, embarrassed and humiliated. In her statement, she also said that she felt embarrassed and humiliated.

12. An affidavit of W was provided to the Tribunal. It annexed a statement made by W on 25 July 2017, four days after the dinner the subject of the Application. In the statement, W, when addressing a time slightly after 10:50pm on the night of 21 July 2017 said:

5.   ... I was standing outside with [P] … and two of his members.

6.   [H] approached me and said words to the effect of: “I need to tell you something”.

7.   She was visibly shaken and I recall that her hands were trembling.

8.   We stepped away from the group and [H] continued: “you won’t believe what’s just happened to me!”

9.   [H] described how a barrister from another floor came over to our table just after I had left to talk to [A]. At some point shortly after, he placed his hand on the back of her head and repeatedly pulled her towards his crotch, mimicking a sexual act and suggesting she “suck my dick!”

13. In his affidavit, affirmed on 23 March 2020, W said:

13.   I refer to paragraph 9 of my Statement. My recollection now, two and a half years after the event, is that H said to me words to the following effect:

   When I was sitting at the table, a barrister came over to speak to [A]. That barrister put his hand on the back of my head and pulled my head towards his crotch. He said to me “suck my dick”.

14. W’s evidence is not, of course, direct evidence of the incident the subject of the Application, but is evidence of H’s contemporaneous complaint of the incident.

15. H swore an affidavit on 6 March 2020. In it, she said that paragraphs 10 and 11 of her initial statement should be reversed in order.

16. The allegations in the Application do not include the statement alleged by H in paragraph 10 of her initial statement to have been made by EFA (see [10] above).

17. EFA sent a written apology to H dated 3 August 2017. In this letter, EFA indicated that he did not recall the incident, except that he recalled ‘horsing around’ with A.

18. EFA swore an affidavit on 30 June 2020, which was tendered at the hearing, and formed EFA’s evidence in chief. In that affidavit, EFA admits engaging in the conduct with A which is set out in the Application, and admits having been intoxicated on the night in question, but denies the conduct set out in [10] above. In his letter to the Bar Association dated 2 March 2018, which is annexure A to his affidavit, EFA describes his memory of the incident with A and H as ‘incomplete’. EFA denies saying “suck my dick” to H, as he pushed her head, but concedes that he said something that offended her. We are satisfied that EFA’s denial is not based upon a recovered recollection, but is based upon EFA’s interpretation of the CCTV footage of the incident. We do not place any weight upon speculation by EFA in evidence as to what he would or would not have said or done, based upon his opinion of his own character. We do not consider that his interpretation of the CCTV footage has any advantages over the interpretation of the footage by the Tribunal members. EFA says, in his affidavit:

10   Having reviewed the Footage, re-read my correspondence set out above and the evidence served by the Bar Association, I say as follows:

…

(c)   I did not do or say the things that H accuses me of. I did not say either of the statements attributed to me, I did not physically push her face towards my crotch nor did I guide H’s head to my crotch;

(d)   I have no doubt that I said something which caused H offence for which I am truly sorry. I did not intend to offend H or to harass H. I also accept that I briefly touched the back of her head and I do appreciate that it was an unwelcome touch. I did not intend for it to be sexual in nature. Again, as I have said since sending H my apology, I sincerely regret touching the back of her head, making a statement which caused her offence and my inappropriate conduct with A which, in hindsight, must have made H feel uncomfortable;

…

19. Under cross-examination, EFA’s evidence was largely consistent with his affidavit.

20. A gave evidence in the Council’s case. Although he recalled some aspects of the function the subject of the Application, he had no independent recollection of the interchange between H and EFA. A admitted to having been intoxicated at the dinner. As with EFA, we place no weight on A’s speculation in his evidence about what he thinks he would have paid attention to or noticed.

21. F gave evidence in the Council’s case. He was not intoxicated at the dinner. He was sitting at the same table as H and A at the time of the incident, but did not notice the interaction the subject of the Application.

22. G gave evidence in the Council’s case. He was also sitting at the same table as H and A at the time of the incident. He has a general recollection of the dinner, but believes that he was focussed upon his conversation with F at the time of the incident, and did not notice it.

23. We viewed the CCTV footage of the incident from both cameras several times in the course of the hearing, and several times subsequent to the hearing, at close quarters. Both in the hearing and out of it, we have seen the footage played at real time speed, in slow motion and, in parts, frame by frame. It is important, in order to get an accurate perspective on the incident, to watch the footage from both of the CCTV cameras. Obviously, the CCTV footage does not have a sound track.

24. According to the time stamp on the CCTV footage, EFA and another person began approaching the table at which H was sitting with A at 10:53:01. H, A, F and G were seated at the table, and there were six spare chairs. H and A were sitting next to each other and F and G were sitting opposite them. EFA approached the table on the side where H and A were sitting. H was the closest person to him, as he approached from H’s left. A was on H’s right.

25. As he approached the table, EFA gestured to A, sticking up the middle finger of his right hand. A raised his hands to cover his face, his right hand behind his left hand. He then moved his left hand to reveal that the middle finger of his right hand was raised toward EFA. This interaction occurred with H located between A and EFA, and she could see the interaction between them.

26. A raised his hands to his face again, the left hand covering the right hand. A moved his left hand to the left and dropped his right hand to his chest, with the middle finger raised and directed at EFA, who was still approaching.

27. EFA stopped and stood to H’s left. EFA appeared to speak to H.

28. EFA walked towards A, who again covered his face with his hands, and then uncovered his right hand by moving his left hand, revealing that the middle finger of his right hand was up, a gesture clearly directed to EFA. A smiled at EFA.

29. EFA moved towards A, who was still seated, and took hold of A’s head. EFA moved A’s head forwards and back from EFA’s crotch several times. H was looking at A when this began, and then she looked away and then looked back. When EFA released A’s head, A was smiling and looking up at EFA. H was also looking up at EFA.

30. EFA, H and A had a brief conversation. EFA then moved behind A. A leaned back and patted EFA on his right shoulder and the left side of his chest. H was looking at EFA.

31. EFA moved between A and H and stood between them, behind and to the side of both of them. EFA was still standing, and A and H were both still sitting. There was space between EFA and H. EFA bent from the waist a little and reached out with his left hand to the back of H’s head. H was looking down at the table and had her hand over her mouth as if she was coughing. EFA, still behind and to the right of H, touched H’s head with his left hand and lightly pushed it forward, over the table, whilst saying something. H’s head moved forward and down, slightly, and then H moved her head back quickly. She had a shocked look on her face, with her mouth open in an “O”. She did not speak at that point.

32. EFA turned back towards A and walked to a position directly behind him. A said something to EFA. EFA raised both his arms. A leaned back and looked at EFA. EFA lowered his arms and resumed his position between H and A, and behind them. EFA spoke to H, gesturing with his left hand.

33. EFA moved to a position behind A, placed his hands on A’s shoulders and leaned his head over A’s right shoulder. H was laughing at them.

34. EFA and A both threw their hands in the air and then A stood up and EFA and A hugged. H remained at the table, apparently texting on her mobile phone. EFA and A moved toward G, who was still seated, and included him in their hug. H looked around and then got up and walked away. The time on the CCTV footage was 22:54:57. The entire incident took place in less than two minutes.

Findings of Fact

35. The facts alleged in particulars 7 and 9 to 14 of the Application and set out in [5] above are admitted. They are borne out by CCTV footage, except that, when EFA grasped A’s head, it looks as if he is using only his left hand, and when EFA pulled A’s head backwards and forwards towards EFA’s crotch, he did it several times.

36. We find that the facts alleged in particulars 15 to 18 of the Application have been proven to the requisite standard by means of the CCTV footage.

37. Particular 19 alleges that the Respondent’s body was turned towards H as he placed his left hand on the back of her head. The CCTV footage shows that EFA was to the right of H and to the rear of her chair when he touched her head. In other words, he was both alongside her and behind her. With his hand, he lightly pushed her head forward towards the table. Her head did not, as a result, get any closer to him. Rather, her head moved forward, away from EFA, and then she moved it back to where it had been before it was pushed.

38. Particular 20 alleges that the Respondent placed his right hand near his crotch as he pushed H’s head. Upon viewing the footage from both of the CCTV cameras, we are satisfied that the Respondent did not place his right hand near his crotch. As he put his left hand behind H’s head, his right arm was simply hanging, at rest, with the elbow slightly bent, near to, and slightly in front of, the right side of his body, which put his right hand between his waist and his crotch. There was nothing apparently purposive about the location of EFA’s right hand.

39. Particular 21 alleges that the Respondent guided H’s head towards his crotch. We are satisfied, upon our close viewing of both sets of CCTV footage, that he did not do so.

40. Particular 22 alleges that, at the same time that the Respondent engaged in the conduct referred to in paragraphs 18 to 21, which we will take to mean at the time that he touched the back of H’s head, he said words to the effect of “suck my dick”.

41. From the time of her first complaint about the incident to W, H has consistently maintained that EFA said “suck my dick” as he moved her head.

42. H’s initial statement about that part of the incident when EFA had his hand on the back of her head has been shown by the CCTV footage to be mistaken in some respects. H said, in her initial statement:

8.   When I turned my head back next thing I knew, the barrister was standing over me as I was sitting in my chair. He took hold of the back of my head with one hand and started to move my head to and fro from his crotch area. While he did this he said “suck my dick”.

43. It is clear from the CCTV footage that EFA did not move H’s head towards his crotch. EFA initiated one movement of H’s head. H’s head moved forward and slightly down, and then she moved her head back. EFA’s crotch was entirely behind and to the right hand side of H at the time.

44. W’s statement of 25 July 2017 relates H’s first report of the incident to him. H’s first report of the incident to W has been shown by the CCTV footage to be partly mistaken, in that the CCTV footage shows that EFA lightly pushed H’s head forward with his left hand, once, and H moved her head back, once, looking shocked, whilst W says, in his statement, that H told him that EFA:

…placed his hand on the back of her head and repeatedly pulled her toward his crotch, mimicking a sexual act and suggesting she “suck my dick!”

45. The account from H reported by W conflates two aspects of the incident; EFA’s pulling of A’s head back and forth towards and away from EFA’s crotch, and the later light push of H’s head by EFA.

46. H was clearly, sincerely, adversely affected by the incident a short time after it. She gave an account of it to W about 10 minutes later and expressed her emotions of anger, embarrassment and humiliation. It was notable, as she gave evidence, that H’s communication style is not altogether clear or precise, and she was confounded by some aspects of the cross-examination. It seemed to us that she was making every effort to convey her best recollection, but, where her account is contradicted by the CCTV footage, we will rely on the CCTV footage. When H was questioned, in cross-examination, about her perception that EFA was moving her head towards his crotch, it seemed to us that she was trying to convey that, although it had not been her expectation, when EFA moved A’s head, that EFA would subsequently do something similar to her, subsequently, as EFA moved her head, the thought came to her that EFA was about to do to her what he had done to A (see transcript p 23-24). It may be that her thoughts became confused with what was actually happening.

47. The fact that H was mistaken about some aspects of the incident does not mean that her evidence cannot be relied upon for other aspects.

48. No other witness was able to give a direct account of the incident; in the case of EFA and A, because they were intoxicated and had no memory of critical aspects of the incident, and, in the case of G and F, because their attention was elsewhere.

49. It is apparent from the CCTV footage, particularly from the north west camera, that EFA said a few words to H as he pushed her head. Putting this together with the evidence of H, including her initial statement to W, we accept H’s evidence that EFA said “suck my dick” as he pushed her head forward.

50. H said, in her initial statement and under cross examination, that she said “What the fuck”, or words to that effect, in response to having her head pushed by EFA. The CCTV footage clearly shows a look of shock on her face, but it does not show her saying “What the fuck” or anything else at the relevant time. The expression on her face at the relevant time is consistent with her having a thought in those terms, but she did not say any words. The footage of H’s face after EFA pushed her head, once her expression of shock has faded, shows her laughing at the further interaction between EFA and A. We accept that she was attempting, at that time, to maintain a positive social presence. We accept that, when someone laughs, that does not always indicate that they are comfortable or happy. Laughter is sometimes a response to an awkward situation.

51. As to the question of whether A said “He needs to go”, or EFA said “Oh don’t complain about me to the Bar Association”, those statements are not alleged in the Application to have been made. We note from the CCTV footage that A does not appear to speak directly to H in the time immediately after EFA pushed H’s head. It is not apparent, when EFA put his arms in the air once he was standing behind A, after he had pushed H’s head, that he said anything to H. His next move was to lean over and speak to H, gesturing with his left hand, but he seems to say several things, and she responds. From the CCTV footage, the exchange appears to be good natured. We are not able to find, on the balance of probabilities, that A said “He needs to go” or that EFA said “Oh don’t complain about me to the Bar Association”.

Characterisation of EFA’s conduct

52. EFA and A are good friends. Their interaction on the CCTV footage appeared to be a private joke between them.

53. There was no evidence that H or any other person present objected to the greeting between EFA and A, when they both showed each other their right hand, with the middle finger pointing upwards. Although the gestures had the potential to cause offence, they do not seem to have done so.

54. As we have said above at [5], the Application sets out the complaint as follows:

The Respondent is guilty of professional misconduct, or in the alternative, unsatisfactory professional conduct, as the Respondent engaged in sexually inappropriate conduct in that, on 21 July 2017 when attending a function attended by barristers’ clerks and (by invitation) barristers, the Respondent made sexually inappropriate advances, including gestures, physical contact and words spoken, to an assistant clerk, H, and to another in her presence.

PARTICULARS

….

55. We take the reference to ‘another’ to be a reference to A.

56. From the CCTV footage, it is clear that A was amused throughout most of the incident. At no stage does he look uncomfortable. He did not suggest in his affidavit, or his evidence, that he felt uncomfortable. We reject the characterisation of EFA’s conduct towards A as a ‘sexually inappropriate advance’ (or an inappropriate sexual advance). EFA was clearly not making a sexual advance to A. Their interaction, including the brief simulation of oral sex, appeared to be a ritualised greeting which, in part, parodied oral sex. The interaction was clearly not appropriate at a barristers’ clerks’ dinner, even late in the evening, and had the potential to offend onlookers. We note, however, that there is no evidence that anyone present that evening was, in fact, offended by the interaction between EFA and A, including H.

57. EFA’s conduct towards A, in simulating oral sex, did constitute sexually inappropriate conduct or, more accurately, inappropriate sexual conduct.

58. H was offended by the pushing of her head by EFA and the words “suck my dick” which, we have found, he said to her as he did it. EFA’s action and his words self-evidently had a sexual character and were inappropriate conduct towards a clerk who was previously unknown to him in the context of the barristers’ clerks’ dinner. EFA’s words and actions were not, however, in context, an ‘advance’. EFA was not actually inviting H to have oral sex with him. It seemed, rather, from the CCTV footage, that he was extending to her an abridged echo of the greeting he had offered to A. He was including her in the horseplay he had engaged in with A. It was very poorly judged, doubtless on account of EFA’s significant level of intoxication. EFA failed to take into account H’s likely feelings of anger, embarrassment and humiliation. Using the words of the Application, EFA’s conduct was ‘sexually inappropriate conduct’ (or, more accurately, inappropriate sexual conduct’), but it was not ‘a sexually inappropriate advance’ or any kind of advance at all.

59. The pushing of H’s head and the speaking of the words “suck my dick” was unwelcome conduct of a sexual nature towards H. A reasonable person, having regard to all of the circumstances, would have anticipated that H would be offended and humiliated. H was, in fact, offended and humiliated. This was a reasonable and proportional response.

Definitions

60. The common law concept of professional misconduct in the context of the jurisdiction of the Supreme Court with respect to members of the legal profession was described in Council of the New South Wales Bar Association v Costigan [2013] NSWCA 407 at [79]-[80] per Gleeson JA, Macfarlan JA and Sackville AJA agreeing:

79   In exercising its inherent jurisdiction to discipline legal practitioners the Court is not bound by any statutory definition of "professional misconduct". Rather "it has the capacity to determine, and act on the basis of, unfitness, where appropriate, without any need to stretch the concept of professional misconduct beyond conduct having some real and substantial connection with professional practice": Prothonotary of the Supreme Court of NSW v Alcorn [2007] NSWCA 288 per Hoeben J (Beazley and McColl JJA agreeing), referring to A Solicitor v Council of the Law Society of NSW (at [21]).

80   As McColl JA said in Prothonotary of the Supreme Court of New South Wales v McCaffery at [46] (with Sheller and Beazley JJA's agreement):

‘Professional misconduct' at common law is said to connote 'conduct which would reasonably be regarded as disgraceful or dishonourable' by one's peers: see Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 and other authorities collected by Spigelman CJ (with whom Mason P and Handley JA agreed) in New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 at [36] ff. Allinson was adopted in relation to the legal profession in Re a Solicitor; Ex parte Law Society [1912] 1 KB 302 at 311-312: see A Solicitor v Council of the Law Society of New South Wales, above, at [13].

61. The Uniform Law defines professional misconduct as follows:

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.

62. Matters which 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 are provided for in s 45 of the Uniform Law, and include the following:

…

(2)  Subject to subsection (4), the designated local regulatory authority must not grant or renew an Australian practising certificate if it considers that the applicant is not a fit and proper person to hold the certificate.

(3)  In considering whether a person is or is not a fit and proper person to hold an Australian practising certificate, the designated local regulatory authority may have regard to the matters specified in the Uniform Rules for the purposes of this section.

(4)  A person may be considered a fit and proper person to hold an Australian practising certificate even though the person does not satisfy the requirements for a matter to which the designated local regulatory authority may have regard, if it is satisfied that this action is warranted in the circumstances.

63. The Legal Profession Uniform Admission Rules 2015 (‘the Admission Rules’) in Rule 10, provides that whether an applicant for admissions is of ‘good fame and character’ is relevant to the Board’s consideration of whether that applicant is a fit and proper person. Pursuant to s 297(2) of the Uniform Law, that question is therefore also relevant to our consideration of whether EFA’s conduct amounts to professional misconduct under s 297 of the Uniform Law.

64. The Uniform Law defines unsatisfactory professional conduct as follows:

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.

65. The Uniform Law provides, in s 298(b):

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—

…

(b)  conduct consisting of a contravention of the Uniform Rules;

66. The Legal Profession Uniform Conduct (Barristers) Rules 2015 (‘the Bar Rules’) are Uniform Rules as defined in the Uniform Law.

The Bar Rules

67. The Bar Rules provide as follows:

7   Other standards

These Rules are not intended to be a complete or detailed code of conduct for barristers. Other standards for, requirements of and sanctions on the conduct of barristers are found in the inherent disciplinary jurisdiction of the Supreme Court, the legislation regulating the legal profession and in the general law (including the law relating to contempt of court).

Advocacy rules

8   General

A barrister must not engage in conduct which is:

(a)  dishonest or otherwise discreditable to a barrister,

(b)  prejudicial to the administration of justice, or

(c)  likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute.

Does EFA’s conduct constitute professional misconduct at common law

68. The conduct of EFA, which is the subject of the Application, occurred at a barristers’ clerks’ dinner on 21 July 2017. Whilst the dinner had a connection with the Bar, in that those invited were invited on account of the fact that they were barristers’ clerks or they worked with barristers’ clerks, attendance at the dinner could not be said to have had ‘some real and substantial connection with professional practice’ (our emphasis) in the relevant sense. EFA’s conduct does not come within the common law concept of professional misconduct. We note that the Supreme Court, in its inherent jurisdiction, has the power to remove a legal practitioner from the roll on grounds other than for professional misconduct, including upon finding that the practitioner is not of good fame and character (see Council of the Law Society of New South Wales v Parente [2019] NSWCA 33 at [45] per Brereton JA). As EFA’s conduct does not constitute professional misconduct at common law, we need not consider the question of whether conduct which constitutes professional misconduct under the common law is within the Tribunal’s jurisdiction. We observe that, in most cases, conduct which falls within the common law definition of professional misconduct will also fall within the statutory definition of professional misconduct.

Does EFA’s conduct constitute professional misconduct under s 297 of the Uniform Law or unsatisfactory professional conduct under s 296 of the Uniform law, or either professional misconduct or unsatisfactory professional conduct under s 298 of the Uniform Law, or not?

69. The Council argued that EFA’s conduct amounts to professional misconduct under s 297 and s 298 of the Uniform Law (quoted at [61] and [63] above). In considering whether EFA is a fit and proper person to engage in legal practice, the Tribunal may take into account whether he is of good fame and character (see Council of the Law Society of New South Wales v Parente [2019] NSWCA 33 at [10] per Basten and Meagher JJA). Fame, in this context, means reputation, which is not at issue in this matter. Character has been raised as an issue.

70. Under s 297(1)(b) of the Uniform Law, we must determine, on the basis of the facts as we have found them, whether EFA’s conduct, in the course of the incident at the barristers’ clerks’ dinner on 21 July 2017, would justify a finding that EFA is not a fit and proper person to engage in legal practice.

71. We are presently dealing with Stage 1 of the disciplinary process, which involves the consideration and determination of the practitioner’s culpability for an alleged breach of the Uniform Law. The question of what protective orders, if any, are appropriate, will only arise if culpability is established, in which case the Tribunal will proceed to Stage 2 of the disciplinary process, which is the consideration and determination of what those protective orders should be.

72. It does not necessarily follow from a determination in Stage 1 that a practitioner’s conduct amounts to professional misconduct that a recommendation will be made that he or she be removed from the roll of practitioners in Stage 2. The consideration of whether a practitioner is a fit and proper person to engage in legal practice for the purposes of Stage 1 involves focussing on the nature and extent of the conduct, in its factual context, proven to the requisite standard. The consideration of what disciplinary orders, if any, are appropriate in Stage 2, will take into account a range of other factors, which may include matters personal to the practitioner, such as his or her health or personal circumstances, and any relevant measures taken subsequent to the impugned conduct (see The Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145 at [70] per Basten JA).

73. A determination, at Stage 2, that it is appropriate for the Tribunal to recommend to the Supreme Court that a legal practitioner be struck off the roll can only be made if it has been demonstrated that the practitioner is probably permanently unfit to practice law. (see Berger v Council of the Law Society of New South Wales [2019] NSWCA 119 at [367]). It follows that, at Stage 1, the conduct alleged to be professional misconduct must have the potential to form the basis of that conclusion.

74. The Council cited the following authority in relation to character:

‘Good character’ is not a summation of acts alone, but relates rather to the quality of a person. The quality is to be judged by acts and motives, that is to say, behaviour and the mental and emotional situations accompanying that behaviour. However, character cannot always be estimated by one act or one class of act. As much about a person as is known will form the evidence from which the inference of good character or not of good character is drawn. (Ex parte Tziniolis: Re Medical Practitioners Act (1966) 67 SR (NSW) 448 at 475-476 per Holmes JA).

75. At a barristers’ clerks’ dinner, EFA became intoxicated to the extent that his memory of the events of the latter part of the evening was patchy. Whilst in that state, in an incident which lasted less than two minutes, he performed a greeting ritual, with a friend, in which oral sex was parodied. The ritual had the potential to offend onlookers. EFA then lightly pushed the back of H’s head and said “suck my dick”, in a clear reference back to the greeting ritual that H had just witnessed. Although she appeared to maintain a cheerful social demeanour directly after the incident, H felt angry, humiliated and embarrassed. This was a proportionate response. H left the dinner soon afterwards. EFA was not previously known to H.

76. EFA’s conduct was poorly judged, vulgar and inappropriate. He failed to consider H’s likely reaction to his actions. His level of intoxication was also inappropriate at a function connected with the practice of the law. However, we do not consider that EFA’s actions during the incident on the night of 21 July 2017 indicate that he has a character flaw which would render him unfit to practice the law for any length of time, let alone permanently. Had his actions and words to H actually constituted a sexual advance, we would have characterised it differently, but we are satisfied that his actions and words were not a sexual advance.

77. The Council has not established that EFA is not a fit and proper person to engage in legal practice under s 297 of the Uniform Law.

78. A contravention of the Uniform Rules, which includes the Bar Rules, is capable of constituting professional misconduct pursuant to s 298(b) of the Uniform Law.

79. The Council argued that EFA’s conduct contravened r 8(a) of the Bar Rules, in that it was conduct discreditable to a barrister, and r 8(c), in that it was conduct likely to bring the legal profession into disrepute.

80. It was argued on behalf of EFA that r 8 did not apply to the incident which occurred on 21 July 2017 because r 8 is under the heading ‘Advocacy Rules’. Rule 9, which is also under that heading, relates to limitations placed on the ability of a barrister to pursue another vocation whilst he or she is a barrister. It was clearly not the intention that the heading ‘Advocacy Rules’ would limit the application of the rules under the heading. We reject the argument that r 8 does not relate to conduct occurring other than in the course of practising as a barrister.

81. We consider that EFA’s conduct during the incident on 21 July 2021 was ‘discreditable to a barrister’ within the meaning of r 8(a), and also constituted ‘conduct likely to bring the legal profession into disrepute’, contrary to r 8(c). We do not consider, however, that EFA’s conduct in breaching r 8(a) and (c) of the Bar Rules was sufficiently serious to constitute professional misconduct. That conduct, as a breach of r 8(a) and (c), does not indicate that he is not a fit and proper person to engage in legal practice. EFA’s breach of r 8(a) and (c) of the Bar Rules constitutes unsatisfactory professional conduct.

82. In paragraph C of the Application, the Council applies for a finding of professional misconduct or, in the alternative, unsatisfactory professional conduct against EFA. Even if the Council had not pleaded unsatisfactory professional conduct, it would have been open to the Tribunal to determine that EFA’s conduct was unsatisfactory professional conduct pursuant to s 302(3) of the Uniform Law, which provides for that finding even where only professional misconduct is pleaded.

Conclusion

83. EFA’s conduct during the incident on 21 July 2017 which involved A and H did not amount to professional misconduct under the common law or under s 297 or s 298 of the Legal Profession Uniform Law (NSW).

84. EFA’s conduct during the incident did amount to unsatisfactory professional conduct on account of it being a breach of r 8(a) and (c) of the Legal Profession Uniform Conduct (Barristers) Rules 2015.

Directions

85. We make the following directions:

1. The Council is to provide to the Tribunal, and to the respondent, a statement as to the disciplinary orders it is seeking as a consequence of the finding of unsatisfactory professional conduct, together with any evidence on which it intends to rely, and submissions, including submissions concerning whether the non-publication order should continue, on or before 12 March 2021..

2. The respondent is to provide to the Tribunal, and to the Council, evidence and submissions in response, on or before 26 March 2021.

3. The Council is to provide to the Tribunal, and to the respondent, any material in reply, on or before 9 April 2021.

4. The parties are jointly to provide to the Registrar of the Occupational Division of the Tribunal, on or before 12 March 2021, a range of dates, subsequent to 9 April 2021, for the Stage 2 hearing.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar

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Decision last updated: 04 March 2021