2 The Council of the New South Wales Bar Association (the Association) claims that the barrister is guilty of professional misconduct, and brings these proceedings seeking a finding to that effect together with consequential orders. At the conclusion of the hearing of the proceedings, the Association through its Counsel submitted that we should make our findings upon whether or not the charge of professional misconduct has been made out and, if it had, then hear further submissions on penalty. We acceded to that submission.

3 The grounds upon which the Association moved for its findings are four. They are related by subject matter but are propounded as free standing grounds namely:

“1. On or about 28 May 1998, the barrister advised Pinebelt Pty Limited (“Pinebelt”) and/or its solicitor Mr Fallins that Pinebelt had an undoubted caveatable interest in the nature of a trust arising from an option it held to purchase the factory premises of Mr Bagley in Wagga Wagga, when he knew that the Supreme Court of New South Wales had determined that any such interest was unenforceable and not properly the subject of a caveat in respect of the subject land.

2. On or about 29 May 1998, the barrister advised and encouraged Pinebelt and Mr Rukavina, a director of Pinebelt, to lodge Caveat No 5019019V, when he knew or ought to have known that such caveat contravened s74 O of the Real Property Act 1900.

3. The barrister inserted into the caveat a description of the alleged interest of Pinebelt in the subject land which he then 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.

4. The barrister inserted into the caveat the expression “Appeal against judgment of Justice Hamilton”, when he had no knowledge that any such appeal had been brought.”

5 In view of the seriousness of the proceedings from the point of view of Mr Abdul-Karim, who appeared in person in his own defence, we requested a transcript be made available for our use in considering our decision. That transcript became available on 8 December 2002. We have endeavoured to prepare these reasons for decision at our earliest opportunity given intervening commitments and the law vacation.

6 By his formal Reply, the barrister says that:

“1. As to ground 1 of the Legal Practitioner says that the thrust of the advise (sic) on the question of caveatable interest referred to and dated 28th May 1998, related to a lease ordered by the Supreme Court in favour of Pinebelt to take effect from 21 August 1997. Further as at 28th May 1998 the lessor had either surrendered or was in the process of surrendering possession of the demised property subject to lease to the mortgagee who wished to take vacant possession.

2. As to ground 2 the Legal Practitioner unreservedly denies that on 29th May 1998, he advised and encouraged Pinebelt or anyone of its directors to lodge a caveat. The Legal Practitioner says that at all times when he was briefed to act for Pinebelt he acted under instructions and in accordance with his brief.

3. As to ground 3 the Legal Practitioner unreservedly denies that he inserted interest of Pinebelt which he knew to be false and misleading.

4. As to ground 4 the Legal Practitioner says that as at 28th May 1998, he had prepared all the documents necessary to lodge an appeal against Justice Hamilton’s judgment and had forwarded these documents to his instructing solicitor. At the time the expression was inserted in the caveat the Legal Practitioner did not know, neither did Ivan Rukavina know as to whether John Fallins solicitors had or had not filed the appeal. In the circumstances the Legal Practitioner says that abundant caution dictates that such an expression be inserted. The Legal Practitioner was under obligations to protect his position and that of his instructing solicitor.

5. In answer to the whole Information filed on 8th November 2001, the Legal Practitioner says that the Applicant’s information deliberately misrepresents and/or misunderstood the Pinebelt brief or was recklessly indifferent to understanding the brief with which the Legal Practitioner was concerned:

(i) Failed to obtain any statement or seek any explanation from John Fallins solicitor, who at all relevant times was the Legal Practitioner’s instructing solicitor.

(ii) Failed to obtain any statement of (sic) seek any explanation from any of the directors of Pinebelt.

(iii) Failed to obtain any statement of Ivan Rukavina, Pinebelt director, as to event of 28th May 1998.

(iv) Failed to inquire as to advices on evidence given by the Legal Practitioner to Pinebelt prior to 28th May 1998.

(v) Failed to appreciate the significance of proceedings commenced by National Mutual Trustee against John Bagley in March 1998 for possession of premises leased by Pinbelt by order of the Supreme Court.

(vi) Failed to take into consideration Pinbelt’s instructions in relation to proceedings commenced by National Mutual Trustee and how those instructions reflected on the conduct of proceeding number 3422 of 1997.

7 It is apparent that the barrister in the written Reply which he filed, took serious issue with the allegations made by the Association and went so far as to allege misguided yet deliberate behaviour on the part of the Association. Paragraph 6 seems to us to be based on a misunderstanding of the nature of the present proceedings.

8 The barrister opened his defence and then read an affidavit sworn by him. He was cross examined at some little length by counsel for the Association. However after a number of exchanges between the Tribunal and the barrister during the course of the opening statements and what appeared to be a foreshadowing by the barrister of a somewhat wider evidentiary defence than had been filed pursuant to the Tribunal’s pre-hearing directions, the point was reached where the barrister accepted that the essential factual issues upon which he, the Association and the Tribunal were required to focus, were those of and surrounding the 28th May 1998 concerning:

1. his accompanying a representative of Pinebelt Pty Limited (“Pinebelt”) to the Land Titles Office (LTO) at Sydney;

2. the events which happened involving the barrister at the LTO that day when a caveat was drafted and lodged in respect of certain lands at Wagga Wagga;

3. advice the barrister gave in connection with the preparation and lodgement of that caveat and in connection with any proposed appeal against a decision of Hamilton J of 14 May 1998;

4. the barrister’s knowledge about and appreciation of his role in the events identified in 1, 2 and 3 above.

10 The barrister represented himself. We recognise that in so doing his evidence may well be influenced by his emotional involvement in seeking to defend himself against serious allegations and at the same time seeking to explain clearly and truthfully why he did what he did. Indeed, on the second day of the hearing before us, the Chairman had the following exchange with the barrister:

West: Let me just finish. I understand you are appearing for yourself. That is a decision which you have made.

The Witness: Yes.

West: And in those circumstances, you ought to be aware that you do need to do yourself justice and I understand that you are emotionally involved in this. It would be odd if you were otherwise. I just think that you are letting your emotion cloud your intellectual judgment and I would wish that you do not do that.

The Witness: Thank you for that.

West: So just take it easy. Okay?

The Witness: Sometime I just – thank you for that. I cant – you should remember I come from Middle East. I was born in the Middle East.

West: Well, I’m …

Mattila: Yes, but you are a barrister and have been for some time.

West: But you have yourself for a client.

The Witness: Yes, thank you.

West: That is the difficulty. Yes, Mr Mahony.

Mahony: Excuse me, members of the Tribunal. Perhaps if I could deal with it after the morning tea adjournment. I’ve lost the exact wording of the …

West: I’m sorry to …

Mahony: No, not …

West: My remarks have done that. But it just seemed to me that it was important that we just call a halt. All right. Very well, we will adjourn until 10 to 12.

T40 line 4 to line 46.

11 We have considered carefully his answers, bearing in mind his demonstrated tendency to give unresponsive answers to questions – even where he could have had no serious interest in being unresponsive. We have approached our task mindful of the decision of the High Court of Australia in Briginshaw v. Briginshaw (1938) 60 CLR 336 at 362 to 368 (per Dixon J).

12 We have been most concerned that we do not allow his manner of response to deflect us from seeking to understand what he was seeking to convey nor to let this tendency deflect us from our duty. To take but one example, at the very conclusion of the proceedings before us, we invited the barrister to reply to a submission made by Counsel for the Association as to how we should treat a claim made by the barrister that in proceedings before Hamilton J he had not been permitted by the judge to properly or fully respond to a specific question and, thus, to allow the judge to labour under an enduring misapprehension as to what the barrister’s instructions had relevantly been on the vexed question of the existence of a trust which would impress itself on the subject property at Wagga Wagga: T38 line 45 to T39 line 30 of 6 November 2002. The barrister’s response was:

“[Counsel], I just wish to say that I paid for out of my own pocket and he was the counsel that was available on – he knew in relation to anything that transpired subsequent to that. Because in this light Mr Chairman, I sort of say it and I think because I was asked questions I think in the witness box as to why I didn’t appeal decisions. So in relation to that’s – that was the situation, I was not invited to do so.”

14 Much of the material which the barrister cites as supportive of his position is reliant for its acceptability upon his say so alone. Especially is this so as to:

(a) what he claims was known to him from his instructions from the Rukavinas and which he asserts caused him to form and continue to hold the opinion that there existed a trust in respect of the interest in the Wagga Wagga property;

(b) his claims that he was asked by Mr Ivan Rukavina to draft the form of caveat lodged at the LTO on 28.5.98;

(c) his claim that Rukavinas were in effect being harassed by National Mutual in their occupation of the Wagga Wagga property – contrary to their right to quiet enjoyment ordered by Hamilton J;

(d) his claim first made before Hamilton J that he was merely acting as a tour guide in accompanying Mr Ivan Rukavina to the LTO on 28.5.98;

(e) his claim that in drafting the caveat he was under a duty to protect himself and his instructing solicitor (Mr Fallins);

(f) that he was entirely unaware of the executed Withdrawal of Caveat form which Mr Ivan Rukavina had in his possession at the Land Titles Office on 28.5.98 and that same was lodged that day by Mr Rukavina; and

(g) that he in fact filled out an Application to Withdraw Caveat form at the Land Titles Office that day as part of his “assistance” to Mr Rukavina.

The Facts
16 In about August 1994, one Mr John Bagley (“Bagley”) granted to Pinebelt, a company owned or controlled by the Rukavina family, an option to purchase factory premises in Wagga Wagga (“the Land”).

17 On or about 28 August 1997, Pinebelt lodged a caveat over the land in respect of its option based interest.

18 On 19 December 1997 Hamilton J sitting in Equity in the Supreme Court of NSW gave judgment in an action brought by Pinebelt against Bagley in which Pinebelt sought specific performance of a contract to purchase the land. The contract was alleged to arise from the said option. The barrister appeared in that action for Pinebelt. The suit failed – his Honour holding that Pinebelt was not ready, willing and able to complete the contract alleged. Judgment was entered for Bagley.

19 No appeal was brought from this judgment of Hamilton J. However, in 1998, an application was made to Hamilton J by Pinebelt for the amendment of Points of Claim in the specific performance suit so is to allege that in the light of the failure of the claim for specific performance, nevertheless the Court should make a declaration that Bagley held the land in trust, upon a constructive trust, for Pinebelt or, alternatively, that the land was charged in favour of Pinebelt in respect of amounts of money which Pinebelt had expended upon it.

20 On 14 May 1998, Hamilton J found that:

“The case for a constructive trust as formulated for the plaintiff is quite inchoate. So far as it can be understood, it seems to be said to arise from a common intention the parties formed that the property should be transferred to the plaintiff and from the fact that the plaintiff made certain payments in respect of the property on the basis of that intention. The difficulty is that the evidence in the case, and even the proposed points of claim now propounded, … proceed on the basis that that intention culminated or was encompassed in the contractual arrangement whereby the plaintiff was granted an option to purchase the property, the payments providing the consideration for that grant; that option was exercised; and thereafter the parties proceeded on the basis that a contract for sale was on foot. The defendant maintained that he had validly terminated that contract: the plaintiff claimed to enforce it specifically; it was upon that claim that I entered judgment for the defendant on the basis that the plaintiff had lacked readiness and ability to perform. There seems to me to be no room in these circumstances to allege that by reason of the earlier common intention of the parties that the property should be transferred to the plaintiff and its making at that time of the payments alleged, that a constructive trust should be held to arise. The plaintiff got what it bargained for in entering into the contractual arrangement for the option, but lost its right to specific performance of the contract arising from exercise of the option because it was unable to establish its readiness, willingness and ability to perform.

The same difficulty arises in relation to the submission that the payments made in the negotiations, and for the purpose of procuring the option, or in pursuit of the contractual arrangements between the parties, ought be regarded as creating a charge over the property in favour of the plaintiff. So far as the rent is concerned, the non-payment, payment or over-payment of those moneys are matters regulated and to be adjudicated on by reference to the terms of the contract embodied in the lease between the parties. If moneys have through mistake been overpaid, that fact may give rise to a right to recover them in an action for restitution, but cannot by reason of the mistake created a proprietary right in the plaintiff in the circumstances revealed in this case”

22 The draft Summons is incomplete in that it refers to, but does not satisfy the requirement of, Part 51 Rule 3(7) SCR, however it seems that the barrister did complete the missing material and dispatched it under cover of a letter from him to Mr Fallins on 26th May 1998. In that letter, the barrister acknowledges the possibility that another firm of solicitors might be taking over conduct of the matter and, in that event, he requested Mr Fallins forward the draft documents to those solicitors.

23 Following the decision of Hamilton J of 14 May 1998, the barrister received a lengthy letter from Mr Fallins, in which his instructing solicitor reviewed the position in the litigation and relevantly:

• Enclosed signed Notices of Intention to Cease Acting as Solicitor dated 19.5.98 and fixing the time after which a notice of ceasing to act for Pinebelt as “seven days from 20 May 1998”.
• Raised matters for consideration at a hearing before Hamilton J which was due to occur on Friday 22 May 1998.
• Pointed out that he (Mr Fallins) had told the client that he was relying upon the barrister’s advice as to what “further steps if any can or should be taken on or before Friday”.
• Recorded that, inter alia, there were on going practical problems with respect to the occupation of the land by Pinebelt seemingly because of failure to pay rental or rates as and when they fell due.
• Made it crystal clear that there was a chronic problem in that not only was Pinebelt not paying rent etc, it was not paying the fees of either Mr Fallins or the barrister. (Indeed, it appears obvious that the chronic problem was the principal reason for the Notice of Intention to Cease to Act being served upon Pinebelt.)
• Recorded that Pinebelt might wish to appeal against the decision of Hamilton J of 14.5.98 (refusing the application by Pinebelt to amend its Points of Claim, so as to add the allegation that the circumstances gave rise to a trust in favour of Pinebelt) although the client had given instructions not to appeal against the earlier decision of Hamilton J dismissing Pinebelt’s application for specific performance.
• Recorded that, apart from the earlier mentioned problem with Pinebelt not paying rent and legal fees, there was probably a real question as to its solvency and a liability for Group Tax. The solicitor recorded that he had earlier advised that a conference with the client be convened to sort out the company’s affairs.
• Recorded that: “I believe you have my files containing all pleadings and affidavits in the matters. I will assume you will consider which application/motions, if any, are still ‘alive’ and will need to be progressed or disposed of on Friday”. (emphasis added).
• Pointed out that Pinebelt had instructed that Mr Peter Rukavina was to be authorised to instruct on behalf of Pinebelt however so far as Mr Fallins was concerned he would not be satisfied unless directors of Pinebelt gave such instructions. (Seemingly, Mr Peter Rukavina was not such a director).
• Sought an appointment to discuss what assistance could be given to Pinebelt up till and including Friday 22.5.98.
• Recorded his extreme reluctance to undertake any further work for the client in light of broken promises and undertaking to pay fees – including the considerable fees outstanding to the barrister.

25 At the hearing before Hamilton J on 22.5.98, the barrister appeared. He was instructed by Mr Fallins. We pause to note our emphasis in the 4th last subparagraph of paragraph 23 above. Quite why the barrister was possessed of the solicitor’s files, seemingly to the point of denuding the solicitor of copies of the pleading and affidavits, was not explored before us. The clearest account of what happened on 22.5.98 is contained in a letter from Mr Fallins to his client of that day: see Annexure 9 to Ex “G”. It is not necessary to do other than highlight the following matters set out in that letter:

(i) Pinebelt was ordered to withdraw the existing caveat on the title to the land by Friday 29 May 1998;

(ii) directions were given for the preparation for hearing of the claims and counter claims about outstanding rental.

(iii) Hamilton J was informed:


(a) that Mr Bagley was seeking to refinance the property;

(b) that Pinebelt intended to seek leave to appeal against his Honour’s decision of 14 May 1998.


(iv) The client was asked to reconsider its position generally and especially from the point of view of the cost/benefit of pursuing an application for leave to appeal and its likely success on same. As well its ongoing failure to pay legal fees, there was a continuing problem of the question of solvency of Pinebelt. Indeed the solicitor requested that the client provide him with an accountant’s certificate as to solvency.

(v) The client was told squarely that:


“In order to be absolutely clear about the position, if funds/undertaking are not received by 5pm Tuesday next, on Thursday 28 May 1998 I shall be filing a Notice of Ceasing to Act in Court and serving other parties.”

“Between the period 22 to 28 May 1998 I had a number of discussion with my instructing solicitor regarding the further conduct of the matter. As a result of those discussions I became aware that Mr Fallins was preparing a Notice of Ceasing to Act which he wanted to file. At the same time Mr Fallins was having regular discussions with the directors of Pinebelt especially Mr Ivan Rukavina. Although I was not regularly updated I was aware that if the directors of Pinebelt were able to meet certain requirement Mr Fallins was willing to continue acting in the matter. I was also aware that Pinebelt’s directors were talking to other legal representatives.”

28 Annexure “D” (the incomplete draft Summons for Leave to Appeal) seems to have been drafted at some time early on 26 May 1998 for it is referred to in Annexure E as accompanying the letter from Mr Fallins to the Directors of Pinebelt Pty Limited. The letter to those Directors accompanies Annexure E – the latter having been sent to the barrister by fax at 13:40 hrs on 26 May 1998. Importantly, in the letter to the directors, Mr Fallins says:

“I now send herewith draft Summons for Leave to Appeal drawn by Mr Abdul-Karim. Mr Abdul-Karim advises that he should be able to draw the required statement setting out the nature of the case, the questions involved and why leave should be given later this afternoon or tonight. You should instruct other solicitors to engross the Summons and to contact Mr Abdul-Karim concerning the Statement as this firm will not be able to act in the application for leave. Mr Abdul-Karim advises that the Summons and support statement must be filed and served at the latest by this Thursday 28 May 1998 and you must therefore make other arrangements for a solicitor to act for you urgently” (Underlining added) (The bold type appears in the original letter).

30 In annexure “F” to the barrister’s affidavit, he said to Mr Fallins:

“Re: Pinebelt Pty Limited – Summons for Leave to Appeal

Undoubtedly Peter Rukavina have had discussions with you yesterday. He did telephone me twice and indicated that he will talk to you. The instructions to seek leave to appeal Justice Hamilton’s latest judgment is very clear. Given that the judgment is dated 14th May time will run out on 28th May, ie, in 2 days.

For abundant caution I am willing to stay back tonight and prepare the necessary documentation. I note that your Notice of Ceasing to Act comes into force either tomorrow or Thursday.

As a matter of urgency please let me know your intention regarding the appeal. If I do not do the appeal today I cannot do it any other time (unless I do not sleep).”

31 Finally, there is the letter dated 26 May 1998 from the barrister to Mr Fallins to which we have earlier referred which says:

“Re: Pinebelt Pty Limited – Summons for Leave to Appeal

Further to our discussions and my subsequent letters earlier today I enclose herewith the required Statement to the Summons for Leave to Appeal.

As advised those documents will have to be filed by 4:00 pm tomorrow or early on Thursday the 28th May being the last day. I note your comments that Messrs Philip Parbury & Associates may be taking the conduct of this matter. If this is the case and I am in Hornsby Local Court Tomorrow I would greatly appreciate you forwarding those documents to Messrs Philip Parbury & Associates.”

33 On the Wednesday 27th May 1998, the barrister was occupied on professional engagements at Hornsby, NSW. It is not established if he went to his chambers that day however he was in his chambers on the morning of 28th May 1998 preparing for an appearance before the NSW Court of Appeal appointed for 3:15pm that day.

34 The events of 28th May 1998 have been explored in cross examination of the barrister before us. It will be necessary to refer to some of that evidence shortly. However, it is instructive to see what the barrister said in the affidavit filed and read in the Supreme Court of New South Wales on his behalf (to which we have earlier referred) about the events of that day:

“4. On 28 May 1998 I had two conferences with clients and a court appearance in the Court of Appeal scheduled for 3:15 pm that day. At about midday I received a number of telephone calls from Mr Ivan Rukavina. In those calls Mr Rukavina said to me words to the effect: ‘I am flying to Sydney to see Mr Fallins and I wanted to remove the caveat as ordered by Justice Hamilton and to put on a new caveat to protect Pinebelt from claims by National Mutual Trustee Limited for vacant possession and any claim by Bagley’. I said to Mr Rukavina words to the effect: ‘I am in my chamber up until 3:00 pm keep me informed of your progress and if you want any assistance let me know’.

5. Whilst in the Court of Appeal I received at least two urgent messages on my pager to ring Mr Rukavina. I recall leaving the Court of Appeal and telephoning Mr Rukavina. I further recall Mr Rukavina saying words to the effect: ‘that he did not know where the Land Titles Office was and either that he could not get Mr Fallins to meet him or was having difficulties contacting Mr Fallins’ and that he had a plane to catch back to Wagga Wagga after 5:00 pm. I informed Mr Rukavina that if he wished to see me I was prepared see him outside the Supreme Court as soon as my matter in the Court of Appeal finishes.

6. My matter in the Court of Appeal concluded at about 4:00 pm and I met Mr Rukavina outside the Supreme Court at about 4:15pm. I accompanied Mr Rukavina to the Land Titles Office. Mr Rukavina had no documents with him. He did not know what form to fill to remove the caveat and what form was required to place a new caveat. Further, Mr Rukavina did not know the details of the caveatable interest. He asked me to assist him. I assisted Mr Rukavina out of sheer politeness being fully aware of the time restraints for him to catch his flight and the fact that the Land Titles Office closes at 4:30 pm.

7. To the best of my recollection the required forms were completed without the benefit or assistance of citing any document. I recall the officer from the Land Titles Office asking Mr Rukavina whether he had the company’s seal and Mr Rukavina saying the he did not. I further recall saying to the officer words to the effect: ‘I am not a solicitor and that I did not wish to witness Mr Rukavina’s signature’. I recall the officer saying words to the effect: ‘wait I will see if I could locate a Justice of the Peace who could witness his signature’.

8. After some moments the officer came back and said words to the effect: “I made enquiries I could not locate anyone everybody had left I am sure it will be alright if you signed as his barrister”. Although I was not absolutely certain I though that under the new amendments to the Legal Profession Act it was permissible for a barrister to witness a client’s signature under the Oaths Act. In reliance on that believe I witnessed Mr Rukavina’s signature crossing out the word “solicitor” replacing it with the word “barrister”.

9. As at 28 May 1998 the brief sent to me by Mr Fallins was still in my chamber and I was not asked to return it. Further, at that stage I was notified and was aware that National Mutual Trustee Limited had expressed the view that it required Pinebelt to vacate the premises in anticipation of obtaining possession from Bagley. I had expressed the opinion that Pinebelt needs to protect its interest in the lease and the outcome of an appeal that it had either filed or was anticipating filing by putting a caveat on title and joined as party (interested observer) to the litigation between National Mutual Trustee Limited and Bagley.

10. Annexed herewith and marked with the letters “A” and “B” is computer print out of my letters to Mr Fallins dated 26 & 28 May respectively.

11. In witnessing Mr Rukavina’s signature on 28 May 1998 it was never my intention of any director of Pinebelt to be engaged in any improper conduct, mislead anyone, or deceive the court.”

“Re: Pinebelt Pty Limited – Caveatable Interest

There is an undoubted caveatable interest under lease dated July 1997. There are other caveatable interest in relation the following:

An equitable claim in the nature of a trust in that the lessor holds an option to purchase the demised property in favour of the lessee on trust until such time a determination is made as to the price to be paid under proper interpretation of the option.”

Mahony: Your purpose in writing the letter dated 28 May 1998 was to advise Pinebelt through its solicitors, Mr Fallins, what, in your opinion, was the caveatable interest claimable by it.

The Witness: Yes – well, but let me just – let me just say that wasn’t the first time ---

West QC: Will you just answer the question, please, Mr Abdul-Karim, you’ve been asked a direct question it’s entitled to a direct answer.

The Witness: The answer is yes.

Mahony: And you wrote that letter at a time when you knew that it had been held by Hamilton J that Pinebelt had no equity to enforce the transfer of the land to it pursuant to the option, didn’t you?

The Witness: I also wrote it at a time when I was uncertain whether an appeal on the question of trust was filed; wasn’t filed; was to be filed, that’s when it was written.

Mahony: You at that time had given advice in relation to an appeal, had you?

The Witness: Yes.

Mahony: And that was to appeal the judgment of Hamilton J delivered on 14 May?

The Witness: That’s in relation to where we were not granted leave to amend our points of claim to include a question of trust.

Mahony: And your advice was that the corporation had good prospects of succeeding in an appeal against that judgment, was it?

The Witness: My advice was to take into consideration the global history of the dealing between Mr Peter Ruckvina and Mr John Bagley and it was a telling story and a compelling story in my opinion.

Mahony: Could you explain to the Members of the Tribunal how you were able to give advice that an appeal had good prospects of success in light of his honour’s findings that to allow an amendment in the terms that you sought on behalf of Pinebelt would be a futility as there was no evidence capable of establishing the existence of a trust of any nature or an equitable charge over the property?

The Witness: Well, his Honour didn’t have the full story behind – in front of him when he made that decision.

Mahony: And is Honour also found that the amended points of claim were incompetent because they did not identify any material facts to support the existence of such a claim, you’ve acknowledged that already, haven’t you?

The Witness: Yes.

Mahony: Would you explain then to the Members of the Tribunal how you were able to advise Pinebelt that it had good prospects of appealing his Honour’s decision given those two findings.

The Witness: Mr Peter Ruckvina’s evidence.

Mahony: Is that your answer?

The Witness: Yes.”

38 This lack of evidence about the circumstances in which the barrister came to write the letter of 28th May 1998 is surprising given that part of its contents advises as to the existence of a claim “in the nature of a trust”. The more is this so given the contentions of the Association before us that:

“That advice forms the first ground of the complaint and it is in these terms that the advice was given at a time when the barrister knew the Supreme Court of New South Wales had determined that any such interest was unenforceable and not properly the subject of a caveat in respect of the subject land.” (Transcript 4/11/02 – P7)

39 However, to complete the evidentiary chronology, it is plain that the barrister attended the LTO after he had finished in the Court of Appeal late on the afternoon of 28 May 1998 and did so in the company of Mr Ivan Rukavina. The evidence clearly establishes that Mr Ivan Rukavina lodged a form of Withdrawal of Caveat dated 27 May 1998 and which had been executed under the Common Seal of Pinebelt (Ex E). It must be accepted that this withdrawal of caveat had been prepared by Mr Fallins in blank and forwarded with instructions for its completion under letter of 26 May 1998 to Pinebelt – and copied to the barrister that same day.

40 Whilst at the LTO, the barrister drafted a claimed caveatable interest in manuscript on a standard form caveat document – indeed he filled out virtually all of the parts of the document and then proceeded to witness the signature of Mr Ivan Rukavina. Appearing beneath his own name he wrote the title “Barrister”. The claimed caveatable interest was written out by the barrister as:

“Nature of the estate or interest in the Land/Registered Dealing:

1. Lease dated 21/8/1997 – 21/8/1999.

2. An equitable claim in the nature of a trust in that the lessee holds an option to purchase the land from the lessor and that the lessee is entitled to a determination as to the price to be paid under the option. The option dated 9/8/94.

3. Appeal against judgment of Justice Hamilton”

41 These events at the LTO took place some time after 4:15pm and up until 5pm on the day. The barrister gave evidence that Mr Rukavina had to catch a plane back to Wagga Wagga at 5:30pm and that he did what he did in circumstances of some agitation on the part of Mr Rukavina and the preparations by the staff at the LTO to close up for the night at 5pm.

42 Thereafter the barrister returned to his chambers. He said to us that he did not contact Mr Fallins on 28 May 1998 either to seek instructions or to inform him of what he had done at the Land Titles Office. There is no evidence that the barrister contacted Mr Fallins on Wednesday 27 May 1998 – so whether or not the conversation referred to in para 37 above occurred on that day is a matter of speculation.

43 The evidence establishes that on 28 May 1998 Mr Fallins filed in the Supreme Court of New South Wales a Notice of Ceasing to Act in the action 3422 of 1997 and, it is accepted, in each of the other actions in which he acted for Pinebelt. There is contained in Ex G, a copy of the Notice in No 3422 of 1997. The precise time at which this Notice was filed on 28 May 1998 is not established, however, the barrister said at one point in his cross examination that:

Mahony: On 28 May 1998, on return to your chambers, you did not report what happened in any way to Mr Fallins, did you? You didn’t write a letter to him advising what you had done on behalf of his client?

The Witness: Mr Mahony – Mr Mahony, no, and can I just tell you I had, on that day, Mr David Davies, QC against me in the Court of Appeal in a matter in relation to costs and I had a number of things on my mind other than the Bagley and the Pinebelt matters. So the answer to the question, no.

Mahony: Neither did you provide any further advise (sic) to Mr Fallins, nor any other solicitor in the matter, following your attendance at the Land Titles Office on that day?

The Witness: The answer is no. Mr Fallins had faxed me fairly late on that day, or it could have been – came to my attention the following morning, that sealed copy of the notice of ceasing dated which he had filed on that day in the Supreme Court, or – yes, it was filed on that day in the Supreme Court. He sent me a fax that afternoon. (Underlining added).

(Transcript, 5/11/02 p58 line 20 to line 42.)

Q. (Counsel approached) I am showing you part of Exhibit 7 from the file of Mr Fallins. You see here there is a facsimile transmission to Mr RG Stone of 28 May?

A. Yes

Q. It is a three page document and you see another document of 28 May, copy document?

A. Yes.

Q. It says, “we have ceased to act for Pinebelt Pty Limited. We enclose sealed copy Notice of Ceasing to Act as solicitor in Supreme Court Equity proceedings by way of service”. See that?

A. What is the time of that?

Q. It is dated 28 May?

A. What is the time on the facsimile?

Q If you look at the facsimile the start time says 28/05 and then 16:07. Somebody seems to have altered that to 15:07. See that?

A. Yes I can see that.

Q. You don’t recognize that handwriting at all?

A. No, not at all.

Q. You cant explain the …

A. No.

Q. I am not suggesting you can but you will see it suggests …

A. First time I see this document you are showing me.

Q. I think I am bound to invite your attention to it. It suggests the Notice of Ceasing to Act has been faxed to my solicitors either at 4:07pm or 3:07pm on the 28th. Somebody has seen fit to change the “15” to “16” in handwriting?

A. It is the first time I have seen this document.

Q. Then, do you agree with me that – let us take the morning of 28 May 1998 and your state of knowledge at that time – on the morning of 28 May 1998 you didn’t know, on your version of things, one way or another whether Mr Fallins would or wouldn’t cease to act. Is that right?

A. Actually I didn’t know, Mr McGovern.

Q. It may well have been the position that he could have filed a Notice of Ceasing to Act at any time during the course of that day; on the other hand, he may have stayed in as far as you were concerned?

A. As far as I was concerned, I received a phone call from Ivan Rukavina from Wagga Wagga. He said he was coming to Sydney to speak with Mr Fallins.

Q. And when, if I can take your mind back to the morning of 28th, so far as you were concerned at that time you didn’t know whether a notice of appeal had or hadn’t been lodged with the Court of Appeal?

A. Correct.

Q. And during the course of the day, right up until the time that you completed or filled out the caveat, is your version of events this: That you didn’t know, one way or the other, whether at that point in time Mr Parbury was then acting, whether Mr Fallins had ceased to act or whether Mr Fallins was continuing to act?

A. That is correct. That would be a fair comment.

Q. Is this your version of things: that at the same time, that is, when you completed the caveat document, that you didn’t know one way or the other whether any notice of appeal or application for leave to appeal or summons for leave to appeal had or hadn’t been lodged with the Court of Appeal?

A. I know that I have prepared the documents. I know that I have forwarded the documents but whether they have been lodged or not, I do not know that. I know my instructions were they were going to be. That is certainly the Rukavinas’ instructions.

T22 line 19 to T23 line 40.

46 The barrister, it appears, was shown two documents each dated 28 May 1998. The documents appear to have come from a file of Mr Fallins. The second of the two documents would appear to be in similar form to document No 3 of Ex G before us – namely a letter from Mr Fallins to Messrs Commins Hendricks of 28.5.98 advising that Mr Fallins had ceased to act for Pinebelt and enclosing a copy of a sealed copy of a Notice to that effect – the original of which had been filed in the Supreme Court of New South Wales that day. The barrister’s attention was invited to the copy he was shown by Counsel for Mr Bagley – but only to aspects of the transmission time marked on the document by a facsimile machine and which had been amended in handwriting. Strangely, perhaps, although this was not explored either before Hamilton J or before us, the facsimile document shown to the witness was from the file of the sending party (Mr Fallins) yet it contained a facsimile time trace of the time of its dispatch! Ordinarily, experience suggests that the facsimile time trace appears on the received copy of the document ie, if it was being sent from Fallins to Commins Hendricks, the Commins Hendricks copy would contain the fax time/transmission trace of the sending party. The matter is intriguing because, the document No 3 in Ex “G” before us, is a copy of a transmission received by the barrister. It is a letter on Mr Fallin’s letterhead and accompanying Notice of Ceasing to Act as solicitor signed by Mr Fallins. However the document has two facsimile transmission traces upon it – and indicates a transmission from Mr Fallin’s office at 16:07 on 28 May 1998, and another indicates a transmission at 15:55 on 3rd May 1999. In light of what we are about to refer to, it seems obvious that the barrister received document No 3 in Exhibit “G” from Messrs Commins Hendriks – under cover of Exhibit “K”.

47 It will be remembered that the barrister was cross examined before Hamilton J on 2nd August 1999. He said in respect of this document shown to him on that day:

A. “First time I see this document you are showing me”.

Q “I think I am bound to invite your attention to it. It suggests the Notice of Ceasing to Act has been faxed to my solicitors either 4:07pm or 3:07pm on the 28th. Somebody has seen fit to change the ‘15’ to ‘16’ in handwriting?

A. “It is the first time I have seen this document”

“… The further reality is that your office did not inform me that you had ceased to act on that very same day and filed a Notice of Ceasing to Act. I simply was not aware of this fact. It was brought to my attention for the first time during the hearing before Justice Hamilton on 2 August 1999 …”

“The Witness: If I – I repeat it again. If I said – you can take me to the question and answers for the evidence that I gave before Hamilton J, if I said that is the first time I saw this document, I do not resile one iota from my answer.

Mahony: No, Mr Abdul-Karim, you misunderstand my question. I’m putting to you that the statement you made to Mr Fallins in the letter dated 19 June 2002, was not correct ---

The Witness: I disagree.

Mahony: - - - having regard to your possession of the letter dated 28 May 1998 and the Notice of ceasing to Act. That must be so?

The Witness: I disagree with you. Let me just say – in saying – let me just say this. There had been correspondence in which to me, directly from Commins Hendricks, the solicitors, for Mr Bagley, for me to pay the legal fees an they also faxed me the submission made by Mr McGovern in relation to me being a barrister, shouldn’t have done X, Y and Z and they were asking for me to pay the fees.

It may have well been in that correspondence they had faxed me those documents, and that it subsequent to the finding of Hamilton J that I pay the – or when that matter was, for costs, in the Supreme Court, for argument for costs in the Supreme Court. It may well be that is the explanation for this, that Commins Hendricks name appear on this and it may well be that Mr Fallins has not sent me this document at all.

Mahony: Mr Abdul-Karim, you are now merely speculating, aren’t you, as to one possible way in which this document came into your possession?

The Witness: No, you see, you prompted my memory. You told me I said before, in this letter, I said to Mr Fallins, the first time, I’ve seen it when it was shown to me when I was giving evidence before Hamilton J, that must be right.

Mahony: You refer to correspondence between yourself and Messrs Commins Hendricks - - -

The Witness: Yes.

Mahony: - - - in respect of their requests for payment by you of the costs - - -.

The Witness: Yes.

Mahony: - - - in circumstances where you have brought none of that material as evidence before this Tribunal - - -.

The Witness: Well, I didn’t think it was relevant.

Mahony: That is the fact, isn’t it?

The Witness: I didn’t think it was relevant, but you did ask me some questions whether I had paid costs, or what have you.

Mahony: You have already conceded to the Tribunal.

The Witness: I haven’t yes.

Mahony: - - - that you have not paid the costs?

The Witness: No.

Mahony: The fact is that you are merely speculating that that may have been a possible way - - -.

The Witness: It cannot be speculation. I know myself, and I know that I would not give evidence or say that to Mr Fallins if it isn’t the truth.

…

Mahony: That is as far as I can take this matter, Mr Chairman.

West: Yes, I think that is right, Mr Mahony. Mr Abdul-Karim, just so there is no doubt about this. Look please at document three in annexure in exhibit G?

The Witness: Mm.

West: The date – there are two date/time imprints at the top of that letter, do you see that?

The Witness: Yes. Well, mine is not exactly clear, but I could see the bottom – the one from said, 28/05/98, 16.07 - - -.

West: Yes.

The Witness: - - - that is clear, but the top one that says – I really cant make it out.

West: It is difficult. Mine appears to say, to the best I can read even with the aid of glasses, is 03/05/99, 15:55.

The Witness: Yes.

West: And then, in the same line, Commins Hendricks.

The Witness: Yes.

West: Now, if that truly is what it says, you say, do you, that that is consistent with Commins Hendricks having sent to you, the copy of which this is a photocopy of both the letter of 28 May and the copy of Ceasing to act, as part of a communication to you that you should not have acted as you did and therefore you should pay the costs on an indemnity basis. Is that what you say?

The Witness: Well, it wasn’t – I think the initial – there has been correspondence between – I think the initial correspondence said: look, without need to go to Court, you pay $2000. I said: look, I don’t consider myself to have done anything wrong. There has been correspondence direct to me.

West: But that is what you are referring to?

The Witness: Yes.

West: And you say that ---

The Witness: And the subsequently there was communication to me directly, and then I haven’t heard for a while and then they faxed me submissions – there were directions made in Court and they faxed me submissions from Mr McGovern, unsigned, and a number of correspondence.

West: I just want to understand what it was you were saying.

Mahony: There are two questions which I must ask, arising from that, if I can do so now, and - - -

West: Yes, of course, Mr Mahony.

Mahony: Assuming for the moment that the fact is that you received this document by fax on 5 Marc(sic) 1999, as per the first imprint on the document, that meant, did it not, that you had the Notice of ceasing to act and the letter on 2 August 1999 when you gave your evidence before Hamilton J?

The Witness: That would amount, yes.

Mahony: And you also had the material at the time when you wrote the letter to Mr Fallins on 199 June 2002?

The Witness: Again, I come back to the – what I was shown – my answer was to a document I was show in the witness-box.” (underlining added)

51 Further, there is before us Ex “K”. This is a letter sent to the barrister dated 3 May 1999 by Commins Hendricks seemingly signed by a Mr Store. It said:

“Re: Pinebelt Pty Limited & Bagley

We acknowledge receipt of the affidavit sworn by you in this matter. Would you please note that you will be required for cross examination at the hearing for Application of Costs.

Enclosed is a copy facsimile transmission of Notice of Ceasing to Act as solicitor received by our firm on 28 May 1998 at 16:07pm. At the hearing of the Motion for an Order for Costs against you personally we intend to produce evidence of this document and you should treat this letter as sent Pursuant to Section 168(1) of the Evidence Act.”

53 All of this might be thought not to sit consistently with the evidence he gave, unresponsively, to which we referred at paragraph 43 above – but that apparent tension was not put to him. We do not feel satisfied that we should form an opinion adverse to the barrister’s credit on this question of his knowledge or otherwise of the Notice of Ceasing to Act filed by Mr Fallins. Further, counsel before Hamilton J was in a position directly to contradict the statement by the barrister, that he had seen the Notice of Ceasing to Act for the first time on 2 August 1999 – but did not do so. The Association did not put to the barrister that he was lying about the matter – only mistaken in recollection of events and in his recording of this matter in Ex “H”.

54 In light of this, it appears to us that the Association’s submission that we should approach the determination of this Information in light of a lack of candour on the part of the barrister on this particular issue is not soundly based.

55 We now turn to deal with each ground in the information and there deal to the further extent necessary with specific evidence. In doing so we note that in its written submissions, the Association said that it relied upon the judgment of Hamilton J delivered on 7 July 2000 and the findings made there by his Honour as to the barristers conduct. Those findings are set out in paragraph 15 to the first Schedule to the Information. No objection was taken by the barrister to our receipt of this judgment nor indeed to the submissions by the Association as to the case to which it might be put – in that it could, and we should, rely upon the findings made by Hamilton J in respect of the barrister’s conduct in drafting the terms of the alleged cavetable interest in the dealing form on 28 May 1998.

56 There is a world of difference between having regard to what Hamilton J decided on 14 May 1998 or on 22 May 1998 as to the effect of those orders upon the knowledge of the barrister when he thereafter took certain steps and, on the other hand having regard to Hamilton J’s finding of fact as to the character of that subsequent conduct for purposes of deciding whether or not to make the barrister liable for payment of costs under the Supreme Court Rules. Characterisation given to his conduct by his Honour in this latter regard and findings of fact made by his Honour in connection therewith seem to us to fall within the scope of s.91 of the Uniform Evidence Law. Nothing in s.92 or s.93 of that law appears to us to allow us to have regard to such material: see also National Mutual Life Association of Australia Ltd & Ors v. Grosvenor Hill (QLD) 183 ALR 700 at 715 especially paras 46 and 47. We are not satisfied that inviting and obtaining an “acceptance” by the barrister of those findings, as was done in cross examination before us (see Transcript 5/11/02 Page 48 and 49) overcomes the statutory injunction in s.91 of the Uniform Evidence Law. Accordingly we have had no regard, in coming to our conclusions, to the findings in Hamilton J in his judgment of 7 July 2000.

Ground 1 (see paragraph 3 above)
57 The evidence establishes clearly that the barrister gave advice as set out in his letter to Mr Fallins of 28th May 1998. Part of that advice related to “an equitable claim in the nature of a trust arising from an option”. Thus it seems clear enough that he gave advice to the effect alleged although, to be fair, he gave it in conjunction with other advice.

58 At the time that he sent the advice to his solicitors, he was aware of the decision of Hamilton J of 14th May 1998 to which we have earlier referred.

59 His formal written answer to this ground (set out in paragraph 6 above) is not a full, or entirely responsive, reply to the allegation. The evidence before us demonstrates that the barrister although fully aware of the decision of Hamilton J, regarded that decision as correct only as far as it went – but it did not go far enough in the barrister’s opinion because he was, and remained, of the view that there was evidence which Hamilton J did not have before him but which the barrister believed could be produced and which, when properly understood, would bring about a different result.

60 Before us, there seemed to be an issue at least for a time as to whether or not there really was any such evidence. We are satisfied that we are not in a position, on the material before us, to express a concluded view on that question. We are satisfied that we do not need to do so.

61 We are also satisfied that, the barrister did believe and remained truly of the opinion that such evidence could be procured. He was pressed as to why, if he so believed, no steps had been taken by him or on his advice to cause such material to be garnered and put before Hamilton J. He gave evidence that the “situation on the ground” at that time involved commercial negotiations between his clients (the Rukavinas) and the other parties interested in the land and did not permit that to occur. Thus he had had to run the application on more limited material than he wished.

62 The position as we see it on the evidence is that his answer to the 1st ground of the allegation is that although he gave advice including the advice complained of and that he was aware of the effect of the judgment of Hamilton J, he did not think that that affected the correct position. His opinion was that once the evidence he had wanted to place before the Court (but was prevented by circumstances from so doing) was made available to him and that evidentiary position was rectified on appeal (assuming that leave to introduce it was given) a different position would prevail.

63 It seems to us that if the barrister is accepted on the issue of his belief in the existence of other evidence then, regardless of whether in truth such evidence would or would not establish the trust the existence of which he contended for (as to which we are not in a position to decide) then the ground of complaint falls away.

64 Barristers routinely advise as to the existence, in their opinion, of rights, causes of action, duties etc in the face of a first instance judgment to the contrary – including in circumstances where the result, in their opinion, might be reversed on appeal in the event of the admission of new evidence.

65 In this case, while there can clearly be seen to be a number of doubtful areas as to the prospects for any appeal from Hamilton J on his findings in the judgment of 14 May 1998 and probably even greater doubt about the prospects on any such appeal of the admission of the “new evidence” described in such vague terms by the barrister, we are satisfied that this ground of the complaint is not made out.

Ground 2 (see page 3 above)
66 We accept that the caveat which was lodged at the LTO on the late afternoon of 28th May 1998 and numbered 5019019V contravened s.74 O of the Real Property Act 1900 (NSW). Indeed, it is not in issue that it did so nor, should it matter, that Hamilton J had held that it did so in his decision of 14 May 1998 and that his Honour was correct in that opinion.

67 Further, it is not in contest before us that the barrister knew of the terms of s.74 O of the Real Property Act 1900 (NSW) as at 28 May 1998.

68 What is disputed is, it seems, whether the barrister “advised or encouraged” the company and Mr Rukavina to lodge the caveat.

69 The barrister by his formal reply, “unreservedly denies” that he advised or encouraged the named parties to lodge a caveat. Whilst the particulars of ground 2 refer to the event as being on or about 29th May 1998 and the reply specified “on 29th May 1998” we think nothing turns on this difference. It is plain that “on or about 29th May 1998” embraces the 28th May 1998. Thus, if the barrister was intending to meet the allegations head on he has covered the 29th May 1998 but not 28th May 1998. It is in any event common ground that the relevant events occurred on 28th May 1998.

70 The evidence demonstrates that the letter of advice to Mr Fallins of 28th May 1998 does not in terms advise or encourage anyone to do anything. It is simply a statement of opinion. (See paragraph 35 above).

71 Further, should it matter, there is no evidence that the letter was ever received by Mr Fallins or by anyone else. As we have said earlier there was little attention paid to it before us or before Hamilton J. (See paragraphs 35, 36, 37 and 38). That brings us to the other evidence as to what happened on the 28 May 1998. We have extracted earlier, the barrister’s evidence of what he told Hamilton J as having occurred on 28th May 1998. (See paragraph 34 above). Nothing in that affidavit in our opinion establishes the giving of the relevant advice or encouragement.

72 In cross examination before Hamilton J the evidence on this question was:

A. Mr McGovern, when I went there I was under the belief that he wanted to discharge the caveat and he wanted to put a caveat on. I certainly knew what he wanted but I had no idea whether he was capable of doing that by himself or not.

Q. Well, would you address my question? I want to suggest to you that you acted for a reason other than merely the reason of showing him the Land Titles Office. When you went with him, you went with him for the purpose of not only showing him the Land Titles Office but getting him in there and being of such assistance as may be required to lodge a new caveat?

A. For him to lodge a caveat.

Q. Yes and you agree with me?

A. For Mr Rukavina to lodge a caveat, yes.

Q. And I want to suggest to you that you must have appreciated that the only way that he would be able to lodge a new caveat would be if somebody was able to assist him to ensure that the document was filled out in some form which would satisfy the Registrar General’s staff?

A. The wording of the document, yes.

Q. And you were that person, were you not? You were there for that purpose .. ?

A. No, I wasn’t there for that purpose, Mr McGovern.

Q. Is this your story: That at some point your function changed and you then were there for the purpose of assisting?

A. Mr McGovern, it is not my story, I am telling you the fact. He saw a man in the Land Titles Office. He specialises in caveats or those particular issues Mr Rukavina wanted, I think. And then he had spoken to this man and obviously he needed assistance and the Land Titles Office was getting very close to closing time.

Q. Well, please, I didn’t mean to suggest anything pejorative. Your version of events – perhaps I can put it that way – I don’t mean to extend any discourtesy to you, understand that please?

A. It is the fact, that is what happened.

Q. At some point whilst you were in the Land Titles Office it became clear to you, is this correct, that you would need to assist Mr Rukavina by filling out the caveat form for him?

A. Yes, that would be a fair comment, yes.

Q. You knew, at that point, that Mr Rukavina wouldn’t have the knowledge or expertise to be able to complete the document in a form which would satisfy the Registrar General’s staff, correct?

A. I expected someone in the Land Titles Office would render that assistance to him.

Q. There came a point where you knew that assistance was not available, correct?

A. Yes.

Q. And at a point where there was no other assistance available, at that point there was only you or Mr Rukavina would could fill the form out, correct?

A. Correct yes.

Q. And at the point where there was only Mr Rukavina who could fill the form out, you knew and perceived he himself did not have the capacity or expertise to be able to complete the document in a form which would satisfy the Registrar General’s staff, correct?

A. That will be a fair comment, yes.

Q. You completed the form using wording which you knew and intended would satisfy the requirements of the staff for the purposes of having a caveat lodged, correct?

A. I don’t know what is the requirement of the staff. I used the wording from the knowledge of the matter I have been involved in.

Q. You used your knowledge of the involvement in the matter to complete a caveat in the terms that we have seen in the evidence?

A. Yes, yes.

T17 line 10 to T18 line 34.

Q. Mr Abdul-Karim, you see in Schedule 1 the heading “estate or interest claimed”, this is in the second caveat?

A. Yes.

Q. When you came to fill that part of the form in?

A. Yes.

Q. When you came to fill in that part of the form, was it your belief at the time that it was necessary to express a number of alternative claims to an estate or interest?

A. Mr McGovern, at the time I had no intention of putting, I had never given thought of going to the Land Titles Office actually myself thinking of a caveat and putting a caveatable interest there. I was requested at the last minute.

Q. Is that what you are saying, correct me if I am wrong: Are you simply saying that you put down those three points under the heading “estate or interest claimed”, doing what you could in the circumstances, to attempt to bring to mind some estate or interest claimed?

A. No, I knew the concern, the primary concern of the Rukavinas was the lease that had been, they had been asked to vacate the premises by National Mutual Trustee and that was a major concern and that was the first thing to protect.

Q. Then you have gone beyond that in the way in which you have expressed it though, have you not, by putting in points 2 and 3, correct?

A. What I could recall at the time as being something they could rely on.

Q. You see at the top of the page, “the caveator claims to be entitled to the interest specified in Schedule 1”?

A.. Yes.

Q. And you intended to express the claim to the estate or interest by expressing it in those three different ways 1, 2 or 3, correct?

A. At the time, yes.

Q. So far s 3 is concerned, knowing at the time there was no appeal against the judgment?

A. I wouldn’t say no, I had prepared, as you say knowing whether it is filed or not, you would be correct but I didn’t know.

Q. I want to suggest to you you were recklessly indifferent as to whether or not the Schedule was accurate in expressing the existence of a claim or interest claimed at all?

A. I was not indifferent.

T29 line 25 to T30 line 19.

McGovern:

Q. I want to suggest to you you attended the Registrar General’s office with Mr Rukavina for the express reason that Mr Rukavina would, on behalf of the company, with your assistance, lodge a withdrawal of the first caveat and would lodge the second caveat?

A. I had no instruction specifically to do anything, other than show Mr Rukavina the Land Titles Office. Everything else eventuated perhaps with courtesy from myself rather than anything else.

His Honour:

Q. But something more had eventuated by the time you were writing in the caveat form. That is right, isn’t it?

A. Mr Rukavina had a flight to catch to Wagga, he didn’t want to sleep in Sydney. It was shortly after 5.00 and the office was to close.

Q. You had accepted, in whatever capacity, further instructions from Mr Rukavina or you were doing something more for him at his request, however you care to put it, when filling in the form. Something more than pointing out the Land Titles Office to him, were you not?

A. Yes, when you put it that way, yes. (emphasis added).

McGovern:

Q. I want to suggest to you, you knew the estate or interest you described Pinebelt Pty Limited as enjoying, the terms expressed in the second caveat could not be sustained or wouldn’t be sustained?

A. The lease was my primary concern and the lease was the very first item put as being the caveatable interest. The Rukavinas were very concerned that National Mutual had actually gone to the factory and asked them to leave. They wanted vacate possession. It would have been remiss of me and remiss of our being the legal advisor not to do that.

His Honour:

Q. The caveat went beyond the lease, didn’t it?

A. Correct but the lease should have been the full stop, in retrospect.

Q. Yes and a caveat which had the lease in it may very well not have troubled a purchaser, for instance, from the mortgagee, may it? A purchaser from the mortgagee might have been happy to take the purchase with the lease in place. That is right, isn’t it?

A. That would be a fair comment, yes.

Q. But the purchaser from the mortgagee would hardly be happy to take the premises with some undefined trust interest in it, would it?

A. Assuming an arm’s length purchaser, yes.

Q. What I say is right, isn’t it?

A. Yes.

Q. So the caveat you, in fact, assisted in putting on went far beyond the question of a lease. It included the question of a lease but it went beyond it. That is right, isn’t it?

A. Well, your Honour, your Honour is strictly right but what one must understand is saying that is that I didn’t go there to put a caveat or prepare any notes or take in the circumstances, I am trying to do my best what I can recollect of the matter and what would possibly be a caveatable interest for Pinebelt. It is not as though I went there intentionally to define what is a caveatable interest and stated that I went straight from the Court in a strict time. I had no intention of writing anything, I myself.

McGovern:

Q. You were prepared to sign the second caveat as a witness being totally indifferent to whether or not you were lawfully entitled to witness or not?

A. I disagree on being indifferent. The gentlemen went to find a Justice of the Pease and I expressed my reservations in signing anything or witnessing anything.

T42 line 29 to T43 line 47.

74 Before us, the barrister gave the following evidence on this question:

The Witness: I put a caveat to protect myself and protect Mr Fallins for heaven’s sake.

Mattila: Okay, that’s really the question that in your opinion on the 28th …

The Witness: Absolutely, no reservation, none whatsoever, none, 100 per cent

Mattila: Regardless of the notice …

The Witness: Regardless of the notice.

(Transcript 4/11/02 at T59)

Mahony: Now, you have told the Tribunal that you acted as you did so as to protect both yourself and your instructing solicitor from an action in negligence of Pinebelt, on that, yes.

The Witness: Potential action in negligence of Pinebelt, on that, yes.

Mahony: That was your reason for acting as you did on 28 May 1998. Is that correct?

The Witness: The reason?

Mahony: Yes. You told the Tribunal yesterday that you acted as you did so as to protect both yourself and your instructing solicitors …

The Witness: I said, “Abundant cautions dictated I did what I did”.

Mahony: No, Mr Abdul-Karim, “abundant caution” was in respect of the insertion into the caveat of the third paragraph.

The Witness: Mm.

Mahony: In respect of your conduct generally, you told this Tribunal that you acted to protect yourself and your instructing solicitor from an action in negligence by Pinebelt?

The Witness: Potential claim, I said. I said the alternative. I said it in the sense that the alternative could have been it open had we know what we know now. It has been open to Pinebelt to say: look, you didn’t remove – we instructed you to remove – you had instructions to remove the caveat by the 29th, or the 28th, in accordance with his Honour’s judgment and you had instruction to file an appeal and you had instruction to do that, that and the other.

Mahony: You also …

The Witness: If I didn’t do it, and not having the benefit of contacting or being able to contact Mr Fallins and in the circumstances, yes, I had a duty to protect myself and protect my instructing solicitors.

Mahony: You set that out in your reply in paragraph 4 in respect of the fourth ground, that you were under an obligation – you were under obligations to protect your position and that of your instructing solicitor?

The Witness: Yes.

Mahony: And by that, you were meaning from an action in negligence against both him and yourself?

The Witness: Potential action, yes.

Mahony: This was at a time when you knew that your instructing solicitor had filed the Notice of ceasing to at?

The Witness: Nonsense. Nonsense.

Mahony: On 28 May 1998?

The Witness: I know it now. I did not know it then.

(Transcript 5/11/02 at T36 line 25 to T36 line 39)

76 There is clear evidence that despite it being asserted by the barrister many times that he filled out a withdrawal of caveat form for Mr Rukavina and that as far as he was aware Mr Rukavina had no documents in his possession, at the LTO in fact Mr Rukavina managed to lodge a formally executed Notice of Withdrawal of Caveat. The barrister insisted before us that he had nevertheless gone about filling out some such standard form document but ran up against the problem that there was no way of evidencing the company’s execution of the document for Mr Rukavina had not brought with him the seal of Pinebelt.

77 In the end the barrister was confronted with the evidence of the lodgement of the formal Withdrawal of Caveat form duly executed. As to this piece of evidence the barrister gave the following responses:

The Witness: I have specific recollection of filling a withdrawal of caveat form for him. Now, is it Mr Ruckvina was sitting with an officer here and I was at the place where they had the forms and I have specifically recalled there was a withdrawal of caveat form. I filled one for him

Mahony: Having now seen exhibit E, I want to suggest to you that your recollection to that effect was mistaken?

The Witness: As far as me filling a form for withdrawal of the caveat?

Mahony: No. As far as you being present and providing Mr Ruckvina with the pro-forma and him completing the withdrawal of caveat?

The Witness: If I said that, that might be incorrect, yes. I recall specifically myself, getting the form and starting to – we had a very limited time, Mr Mahony. I have not seen Mr Ruckvina showing me that document, withdrawal of caveat stamped. In fact, I asked him for a seal of the company.

Mahony: I think you have agreed with the proposition, but what I’m putting to you is that your recollection to that effect is mistaken, having regard to exhibit E?

The Witness: I have – as far as – I have not seen exhibit E in the Land Titles Office. I can tell you – will make it very clear. I have not seen it.

Mahony: Mr Abdul-Arim, you may be making it clear but you are not addressing the question that I am putting to you.

The Witness: Well, in the light of that comment, you are right. I have not seen that document completed and stamped as you have shown it as exhibit E. I’m just saying that.

Mahony: The question that I’m putting to you is that having regard to exhibit E, and the record that it was lodged on 28 May 1998, your recollection about which you have given evidence before this tribunal, that – to the effect that you provide Mr Ruckvina with a pro-form and that he completed the withdrawal of caveat in your presence, that that recollection is mistaken?

The Witness: In the light of the evidence now, it is mistaken to the extent that if it can be implied that the document that I completed was the one that finally found its way to the Land Titles Office, yes, but I have specifically recalled taking a form, withdrawal of caveat, and start filling it in.

Mahony: Thank you, that is all I wish to ask.

(Transcript 5/11/02 at T61 line 8 to T62 line 9)

79 However as to Ground No 2 we are not satisfied that he advised or encouraged the lodgement of the caveat – even though when he was engaged on the task of assisting he had a view (however wrong) as to the potential liability of Mr Fallins or himself. There is no evidence that he communicated this view to Mr Rukavina – nor is it established that he caused the caveat to be lodged in the form it was on 28 May 1998 by reason of the putting into effect of his own view that such a caveat should be lodged. Rather, we think that on the evidence before us, it is shown that he has acknowledged to Hamilton J that he received and acted on instructions in filling out the caveat form.

Ground No 3 (Paragraph 3 above)
80 It is admitted by the barrister that he wrote out the description of the alleged caveatable interest in dealing number 5019019V: see paragraph 40 above.

81 What is at issue on this ground is the barrister’s state of knowledge when he did so. It is plain and not in contest that the barrister as at 28 May 1998 knew of and was familiar with the judgment of Hamilton J of 14 May 1998. It is also plain that he had that very day sent to Mr Fallins a letter containing his opinion as to the caveatable interest possessed by Pinebelt: see paragraph 35 above.

82 In his evidence in the proceedings before Hamilton J the barrister relevantly explained as follows:

“Mr McGovern:

Q. I want to suggest to you, you knew the estate or interest you described Pinebelt Pty Ltd as enjoying, the terms expressed in the second caveat could not be sustained or wouldn’t be sustained?

A. The lease was my primary concern and the lease was the very first item put as being the caveatable interest. The Rukavinas were very concerned that National Mutual had actually gone to the factory and asked them to leave. They wanted vacate (sic) possession. It would have been remiss of me and remiss of our being the legal advisor not to do that.

His Honour:

Q. The caveat went beyond the lease didn’t it?

A. Correct but the lease should have been the full stop, in retrospect.

Q. Yes and a caveat which had the lease in it may very well not have troubled a purchaser, for instance, from the mortgagee, may it? A purchaser from the mortgagee might have been happy to take the purchaser with the lease in place. That is right, isn’t it?

A. That would be fair comment, yes.

Q. But a purchaser from the mortgagee would hardly be happy to take the premises with some undefined trust interest in it, would it?

A. Assuming an arms length purchaser, yes.

Q. What I say is right, isn’t it?

A. Yes.

Q. So the caveat you, in fact, assisted in putting on went beyond any question of a lease. It included the question of a lease but it went beyond it. That is right, isn’t it?

A. Well, your Honour, your Honour is strictly right but what one must understand in saying that is that I didn’t go there to put a caveat or prepare any notes or take in any files or anything, to put a caveat. I found myself in the circumstances, I am trying to do my best what I can recollect of the matter and what would possibly be a caveatable interest for Pinebelt. It is not as though I went there intentionally to define what is a caveatable interest and stated that I went straight from the court in a strict time. I had no intention of writing something, I myself”

TP43.

84 These sentiments or views have more to do with how, ultimately his conduct should be treated than with whether he did what he did with the knowledge alleged.

85 We also note that at the tail of the first answer given to his Honour (extracted in paragraph 80 above) the barrister says:

“… It would have been remiss of me and remiss of our being the legal advisor not to do that”

87 However, on the question of the barrister’s knowledge as alleged in Ground No 3, before us he gave the following evidence:

Mahony: You concede now, that his Honour’s judgment on the basis of the evidence before him, was correct? That is correct, isn’t it?

The Witness: On the basis of evidence before him?

Mahony: Yes.

The Witness: Yes.

Mahony: And …

The Witness: Which judgment are you referring to? The 22nd, or the 14th?

Mahony: 14th?

The Witness: Yes.

Mahony: and you conceded, before his Honour, on 2 August 1999, that the interest descried in the second caveat was the same subject matter as the interest described in the first?

The Witness: Same option.

Mahony: To – could I – in fairness – take you to the second caveat? Are you familiar with what you wrote as paragraph number 2, aren’t you?

The Witness: What page are you please?

Mahony: Page 27.

The Witness: The lease? Yes, that is my handwriting, yes.

Mahony: You have told the Tribunal that you held a belief that at the time this document was written, that on the evidence before him, his Honour’s judgment of 14 May 1998, was correct?

The Witness: How many more time you want to ask me this? Yes, I did.

Mahony: Yes. What I want to suggest to you, is that in those circumstances, to write what is written next to paragraph 2, namely:

An equitable claim in the nature of a trust, and that the lessee holds an option to purchase the land from the lessor and that the lessee is entitled to a determination as to the price to be paid under the option, the option dated 9 August 1994.

Was false.

The Witness: At that time I wrote it, no, I didn’t know it was false at all.

Mahony: It was false in that it was wrong, according to law – the law being the judgment of Hamilton J. That is correct, isn’t it?

The Witness: Look. At that time I wrote it, I had prepared all the documentation required to appeal that decision.

Mahony: Mr Abdul-Karim, the description was wrong given his Honour’s judgment, wasn’t it?

The Witness: When you take it as an appeal on that judgment on foot.

Mahony: I will come to paragraph 3 shortly. Would you please confine your answer to paragraph 2? That description was wrong as a description of a caveatable interest, according to his Honour’s judgment, wasn’t it?

The Witness: That did not deal with his Honour’s judgment at all.

Mahony: The description you have written can not in any way, be justified as a legitimate caveatable interest, according to law, can it?

The Witness: It is … In my submission – if it will be arguable.

Mahony: You say that it was arguable …

The Witness: Yes.

Mahony: … notwithstanding that a Justice of the Supreme Court had held …

The Witness: Look, the Justice of the Supreme Court …

Mahony: … just over a week earlier, otherwise?

The Witness The Justice of the Supreme Court did not – it was for the point to amend. The point of the claim, not on the question of trust. It – the interlocutory he had it on an interlocutory basis, the point to amend. What is the evidence before him, he decided correctly but he didn’t decide on the merit, the question of trust.

Mahony: Mr Abdul-Karim, the description placed in the document would be misleading, would it not, to any person who held an interest in the property? That is correct, isn’t it?

The Witness: Look – look, I don’t accept it to be correct – this could – to say something that is – I would – something that I knew to be mis-leading, would involve an intent on my part to mis-lead someone. I genuinely believed what I wrote. Now, if I proved to be wrong, I take the ramification of that decision.

Mahony: Mr Abdul-Karim, that description given that the first caveat which relied on the same subject matter had been ordered to be have been withdrawn, would be mis-leading to any person who held an interest in the property, namely, the registered proprietor, or any interest in the nature of a mortgagee, that is correct, isn’t it?

The Witness: I don’t accept that to be correct.

Mahony: And it would also be mis-leading to any prospective purchaser or prospective mortgagee making a title search of the property. That is the fact.

The Witness: Mr Mahony, to mis-lead someone you must have the intention of mis-leading them.

Mahony: Would you please …

The Witness: At least to be so reckless as to not caring one way or the other. I had a duty at 4.30pm in the afternoon, not knowing what my instructing solicitor had done. Me knowing and being privy to the knowledge and the advices that I had given, to write what I wrote to protect myself and protect my instructing solicitor. Now, I never resolve from that position.

Mahony: I will come to that shortly. That is a proposition you put to the tribunal yesterday in your opening, and I want to ask you some questions about that. But for the moment, would you please answer my questions.

The Witness: I’m answering your questions.

Mahony: This description, given that the same caveat relying on the same subject matter had been ordered wrong and ordered to be withdrawn, was mis-leading to any person who had searched the title of this property, wasn’t it?

The Witness: If it was mis-leading, there was never intended to mis-lead. You can put whatever interpretation you want to it. I have never intended to mis-lead anyone. Intention isn’t there, Mr Mahony. Mr Ruckvina didn’t come to se me on that day.

Mahony: As counsel for Pinebelt, and having appeared since 15 December 1997, you were aware of all of the judgments delivered by his Honour, namely on 19 December 1997, 14 May 1998, 22 May 1998, aren’t you?

The Witness: I read all of them, Mr Mahony.

Mahony: You knew that this was an interest that had been ruled not capable of being a legitimate caveatable interest, didn’t you?

The Witness: Well, I repeat exactly what I said to you. His Honour has ruled on the evidence before him, seeking leave to amend to include trust, not on the issue and the merit that would make up the trust. It is interlocutory ruling of his Honour, for heaven’s sake.

Mahony: It was a ruling none-the-less, and a ruling which in terms of the proceedings on foot, put an end forever to any claim by Pinebelt in respect of a constructive trust or an equitable claim.

The Witness: At the time I have written this, I did not know that.

Mahony: And it put an end to any such claims until such time as an Appeal Court over-ruled it?

The Witness: Yes.

(Transcript 5/11/02 T17 line 37 to T21 line 9)

89 We are satisfied that at the time that the barrister wrote out the description of the claimed caveatable interest he did not intend to mislead anyone. But we accept that given his admitted knowledge of the terms of the judgment of Hamilton J on 14 May 1998 and of his admitted appreciation that on any appeal from that judgment it would be necessary in order to challenge the factual basis for Hamilton J’s conclusions to obtain leave to introduce the missing evidence (earlier referred to) then he must have understood that the description attributable to the caveatable interest at least to the extent of the claimed trust was false. Plainly if he understood that much he would also have understood that to describe the interest as he did was misleading.

90 The barrister’s failure to accede to the obvious strikes us as having more to do with an obstinate refusal to concede that his conduct may be described in unprepossessing terms – a situation to which his emotional involvement in his defence may have been a contributing factor.

91 We are satisfied that Ground No 3 has been made out.

Ground No 4 (paragraph 3 above)
92 The factual scope of this Ground of the Information is very narrow.

93 There is no issue but that the relevant elements of the terms of the caveat were written by the barrister. As with Ground 3, the issue is as to his knowledge at the time he wrote those words. Put simply, was it the fact that, at the time the barrister wrote the description of the caveatable interest, he did not know whether an appeal had been brought (ie lodged with the Court of Appeal Registry) against the judgment of Hamilton J of 14 May 1998?

94 The barrister’s formal written reply to this specific Ground is set out as sub-paragraph 4 in paragraph 6 hereof. It might be thought that what is there written constitutes an admission in terms of the Ground No 4. It goes on to assert an “obligation” to which we have earlier referred. In our opinion the asserted obligation is without foundation. It is without any support in fact or law and seems to stem from a mistaken view of the role of counsel possessed by the barrister. In our view, his possession of such a view, which we do not doubt, goes some way to explaining why this case has arisen.

95 As we have said, technically, the formal response by the barrister appears to constitute an admission of the Ground No 4. Indeed, the barrister was questioned during his address by the Tribunal as to whether he was admitting Ground No 4 (see transcript 6/11/02 Pages 25 line 5 to Page 27 line 54). We think that although the barrister quibbled about the word “brought” he in effect admitted the substance of Ground 4. However, whether he made the formal admission or not in the end does not matter. The barrister’s evidence on the question is in reasonably short compass. Before Hamilton J he said:

Q. One of the asserted caveatable interests was expressed in the terms “appeal against Judgment of Hamilton J”?

A. As a last option, as a last in the priority of three.

Q. Then we know, do we not and can you agree, that at the time that you prepared a caveat in those terms, you didn’t know one way or the other whether there was in fact an appeal that had been lodged against any judgment of his Honour?

A. As to the actual filing of such an appeal, no but I have specifically recalled preparing documents in relation to that appeal.

His Honour

Q. But you didn’t qualify the alternative claim in nay way by saying “prospective appeal against judgment or “appeal which is the subject of draft notice of appeal” or anything of that sort, did you?

A. I didn’t, that is correct.

Q. Furthermore, it is fairly difficult to imagine a reference to an appeal as being a statement of an estate or interest in land, isn’t it?

A. We can always be wise after the event, your Honour. In retrospect, that is probably right.

McGovern

Q. You don’t assert, for instance, that you believed an appeal against Judgment where your client was an unsuccessful party, that could constitute a statement of an estate or interest in land?

A. It was in respect, at the time, of his Honour’s finding of removal of the caveat.

Q. How would that, as you assert it, constitute an estate or interest in land?

A. Only if it was a stay of his Honour’s Judgment.

Q. You have agreed already that no application for a stay was made?

A. That is correct.

Q. And do you agree with me, at the very least, that it is impossible to accept that the fact of an appeal of itself against a judgment could ever constitute an estate or interest in land?

A. I disagree with the word “impossible”.

Q. You think that, in some circumstances or undefined, an appeal against a Judgment might constitute an interest or estate in land, do you?

OBJECTION. QUESTION READ BY COURT REPORTER. QUESTION ALLOWED.

A. Yes, I do.

Q. Can you tell us what those circumstances are?

A. I have not researched the subject to tell you what those circumstances are. I have not researched the subject to tell you those circumstances.

Q. So, even though you have not researched the subject, you are unable to tell us any such circumstances, you still make the assertion, is that right?

A. I stand to be corrected. You asked me at this point in time, I believe yes.

Q. Perhaps I can put it to you in this way: That knowing what you now know in relation to this particular matter, do you agree with me that to have described an estate or interest claimed in terms “appeal against Judgment of Hamilton J” was quite wrong?

A. At the time, as I understood his Honour’s Judgment and I have a vague recollection of the first caveat, the wording of that caveat was fairly confusing, the actual wording of the caveat that was put in relation to that option.

OBJECTION TO LINE OF QUESTIONING

HILBERY: The caveator has to claim an estate or interest in land. What was claimed is a subject of a sentence. It is certainly not a fact which is one of the things your Honour would rely on and it is certainly not a document. As my friend has put to the witness, it was not qualified in any way as to whether it was pending, proposed, part heard, subject to submissions, complete, upheld – none of those qualifying terms were applied to it. It was the beginning of a statement and it might as well, in my submission, have been “Mary had a little lamb”. It was possibly entirely requisitionable, if I might coin such a phrase, by the Registrar General but it certainly was not a statement of an estate and certainly wasn’t a statement of a fact and in fact, in strict grammar, it was not a statement of anything.

HIS HONOUR: To use your example, what is the witness doing writing “Mary had a little lamb” in a caveat form?

LAST QUESTION AND ANSWER READ BY COURT REPORTER. QUESTION AND ANSWER ALLOWED TO STAND.

…

HIS HONOUR:

Q. The point really is, what did any reference to an appeal from the Judgment have to do with the possible statement of an estate or interest in land, Mr Abdul-Karim? I think that is the thrust of what Mr McGovern is asking you?

A. I can only repeat what the wording of the first caveat – I thought your Honour, in your Honour’s Judgment, made some reference to that as being non-sustainable, the actual wording of the caveat. That is basically as high as I can take it, your Honour.

TP27 to TP29

Mahony: You wrote this at a time when you had told the Tribunal and his Honour on several occasions, that you did not know whether an appeal had been actually lodged or not?

The Witness: I have prepared the document, all the necessary document for it.

Mahony: Yes, but you did not know that the appeal …

The Witness: No, I did not know.

Mahony: … or that the application for leave to appeal …

The Witness: That is absolutely correct.

Mahony: Please let me finish. You did not know that the application for leave to appeal had been filed?

The Witness: That is correct. That is why I put there, “Appeal against the judgment of Hamilton J” … If I knew …

Mahony: Yes. You know, don’t you, as a matter of law, that an appeal against a judgment cannot be a caveatable interest in land, don’t you?

The Witness: No, a stake in. Once you lodge your documents you can seek a stay at the same time.

Mahony: Would you please answer my question. You know don’t you, as a matter of law, that an appeal against a decision of the Justices of the Supreme Court, cannot amount to a legitimate caveatable interest in land?

The Witness: As a strict matter of law, correct, Mr Mahony.

Mahony: Well, it is not just a …

The Witness: It is a strict matter of law, of course it is.

Mahony: … strict matter of the law. It is not subject to qualification, is it?

The Witness: Of course it is.

Mahony: Why is it? Can you point this Tribunal to any authority to suggest otherwise?

The Witness: Because – because concurrent – any counsel worth a grain of salt, concurrent with putting or an appeal will seek a stay, for heaven’s sake. Seek an order for a stay of the judgment.

Mahony: See, the document – the caveat in front of you, does not refer to stay at all …

The Witness: No, it does not.

Mahony: … assuming for the moment that what you say is correct …

The Witness: It goes without saying, does it not?

Mahony: No. And you were asked about this matter on 2 August 1999, weren’t you? Do you recall that?

The Witness: Asked about what?

Mahony: About the insertion of the words in paragraph 3 …

The Witness: Yes.

(HERE CROSS EXAMINING COUNSEL REFERRED TO EVIDENCE BEFORE HAMILTON J WHICH WE HAVE EXTRACTED ABOVE)

Have you had time to reflect on that evidence since 2 August 1999?

The Witness: Mr Mahony, I repeat for the nth time, concurrent with that appeal had it been lodged, there would be orders seeking a stay of his Honour’s judgment.

Mahony: Mr Abdul-Karim, you know that it is, as a matter of law, impossible for an appeal against a judgment to constitute a legitimate caveatable interest. You know that, don’t you?

The Witness: I can’t say I have thoroughly - thoroughly delved into that question as far as authorities are concerned but on the surface of it, it is probably correct.

Mahony: Why do you qualify it by saying, “on the surface”? Are you just unprepared to concede what is obvious?

The Witness: Mr Mahony, what is obvious to you may to be obvious to me. Of the law you read – you read the section, I read the section, you may interpret it slightly different to me. I might do like …

Mahony: What section are you referring to, Mr Abdul-Karim?

The Witness: The chapters and books that said what constitutes caveatable interest.

Mahony: When you referred in your last answer to “section” were you referring to a section of the Real Property Act?

The Witness: No, not specifically of caveatable interest.

Mahony: Your answer then, was incapable of having any real meaning, wasn’t it?

The Witness: No. To the authorities on what constitute caveatable interest. There are chapters in a number of books.

Mahony: By giving that answer to the Tribunal, were you intending to mis-lead it?

The Witness: I told you, my – my answer was simply, I said: I haven’t had the opportunity to – I objected to the word “impossible”.

Mahony: Mr Abdul-Karim, you held yourself out as a barrister conducting practice in the Equity Division of the Supreme Court?

The Witness: I practice in the Equity Division.

98 We are satisfied that the facts in Ground No 4 are made out.

Conclusion
99 It follows from what we have written above that we are satisfied that the Association has established Ground 3 and Ground 4 in support of its Information.

100 Accordingly we are satisfied that to the extent proven, the barrister’s conduct has fallen sufficiently short of requisite standard as to be characterised as professional misconduct – in the respect particularised in Grounds 3 and 4 to the Information.

101 We are satisfied that the barrister’s conduct in filling out the caveat form so as to describe the alleged caveatable interest of Pinebelt in the respects identified in Ground 3 and 4 of the Information, was professional misconduct within the meaning of s.127(1) of the Legal Practioners Act. That conduct involves serious departures from the standard of conduct expected of a member of the Bar. This is especially so in relation to the conduct described in Ground No 3. To have described the claimed interest as he did knowing of the decision of Hamilton J of 14 May 1998 is totally unacceptable conduct in a barrister. Ground No 4 also involves serious conduct in the teeth of the standard of behaviour expected of a member of the Bar. In its essence, the conduct involves the making of an entry on a dealing describing a state of affairs on behalf of a client when the barrister did not know whether or not in the circumstances, even if it was a relevant entry (in the sense of being are interest in land – which we think it clearly was not) the state of affairs existed. He simply did not know whether to this extent, what he wrote was true or false.

102 Frankly, we think that the barrister’s conduct demonstrates an unusual and unhealthy closeness of identity with his client’s case and it may well be that in considering what orders should be made in these proceedings account will need to be taken of such aspects of the barrister’s behaviour as disclosed in the evidence before us.

103 We will hear submissions from both parties upon the question of what orders are appropriate in all the circumstances of this unusual case. We will expect the Association to give us substantial assistance in this regard.