2 On that day the application was stood over to a date to be fixed for the Tribunal to receive evidence and submissions as to the appropriate dispositive orders.

3 On 23 November 2007 the Tribunal received that evidence and those submissions.

4 For the reasons set out below the Tribunal is of the view that:

(a) the barrister should be publicly reprimanded; and

(b) the barrister should pay the Council’s costs of the proceedings.

5 For the purposes of these reasons, the relevant facts can be summarised as follows:

(a) on 17 January 2002 the barrister, on behalf of the defendant, concluded negotiations which he had conducted with counsel for the plaintiff in District Court proceedings. Those concluded negotiations resulted in the settlement of the District Court proceedings,

(b) the District Court proceedings had been brought by the partners of McIntosh McPhillamy & Co against a Mr Knudsen. Part of the settlement included terms to the effect that Mr Nichols, one of the partners of McIntosh McPhillamy & Co:

(i) would “not swear any further affidavit nor will you offer to give evidence against Mr Knudsen in the proceedings instituted by the Law Society against him and numbered 01204/01”, and

(ii) would “write to the Law Society within seven (7) days after payment of the said sum of $13,000.00 informing the Law Society that the undertaking has now been honoured and that you specifically decline to give evidence in those proceedings and will send a copy of that letter to Mr Knudsen of even date with that to the Law Society.”,

(c) during the negotiations it was agreed that if Mr Nichols was served with a subpoena then he must give evidence.

The further evidence

7 The further evidence before the Tribunal included ten testimonials tendered by the barrister. These testimonials were from a retired Family Court judge, an acting District Court judge, three senior counsel, four junior counsel and one solicitor. None of these persons was required for cross-examination. Included in the testimonials were statements to the effect that:

(a) the barrister has been found: to be honest, trustworthy and a man of integrity; to have been highly professional and ethical in the manner in which he has always dealt with matters requiring his consideration; and to be a person with a profound respect for the values of the judicial system and an understanding of the proprieties involved in dealing with it and advising clients in connection with it. His approach to negotiations has been entirely professional and his ethical standards, honesty and integrity have been found to be of the highest order,

(b) the barrister’s conduct the subject of this proceeding, is out of character.

(c) it is highly unlikely that the barrister would engage in this conduct again and that the risk of any further indiscretion is negligible in the extreme,

(d) this proceeding has had a salutary effect on the barrister. He genuinely understands both his obligations as a member of the profession and the need to ensure that in his future conduct no suggestion of this sort of conduct arises again,

(e) the barrister is an honest and dedicated professional and a man of good fame and character,

(f) the barrister has given genuinely of his time to other barristers particularly junior members of the bar,

(g) the barrister has been greatly affected by the stress of this proceeding,

(h) the barrister has conveyed deep regret for his actions.

9 The persons who provided the testimonials and the witnesses who swore the affidavits have known the barrister for varying periods of time. Five of them have known him for more than thirty years and another three of them have known him for twenty years or more.

The Council’s submissions

10 The Council’s main submissions may be summarised as follows:

(a) the breach by the barrister was a serious matter notwithstanding that the barrister did not know that what he was doing was wrong,

(b) a reprimand was the appropriate order for the Tribunal to make,

(c) anything less than a reprimand would send a message to the profession that the breach was not serious; and

(d) the principles to be applied by the Tribunal were stated in Law Society of New South Wales v Foreman (1994) 34 NSWLR 408, by Mahoney JA at 441B - C and by Giles AJA at 471 B - C and adopted by Mason P in New South Wales Bar Association v Hamman (1999) 217 ALR 553 at paras 77 and 78,

(e) it was accepted that the barrister was held in high regard by the profession and that he had made a contribution to the law in his writings, and

(f) protection of the public requires a clear message from the Tribunal that this breach is indeed a serious matter.

11 The following submissions were made on behalf of the barrister:

(a) the appropriate order was a caution,

(b) so far as deterrence is concerned, there has already been substantial deterrence brought about by the reasons given by the Tribunal on 5 September 2007. Those reasons will have the effect of reminding members of the profession of their obligations,

(c) the tendency of the settlement agreement to impair the Tribunal’s capacity to do justice in the proceedings brought against Mr Knudsen, was not present to the mind of the barrister,

(d) the barrister gave his evidence honestly,

(e) the barrister is clearly devastated by the events which have resulted from the settlement agreement and the barrister will not repeat his error of judgment,

(f) if the Tribunal publicly reprimands the barrister it might be seen as reflecting on the conduct of the other persons involved in the settlement agreement and its negotiation,

(g) the Tribunal should take into account that no proceedings have been taken against two of the other persons involved, when assessing what in general fairness is the appropriate order to be made, and

(h) the facts of this case are quite exceptional.

12 The Tribunal is of the view that it must determine the appropriate order to be made without regard to the fact that disciplinary proceedings may not have been taken against two of the legal practitioners involved in the settlement agreement and its negotiation. It was the barrister’s conduct which was the subject of the application before this Tribunal. That conduct is considered by the Tribunal in the light of the conduct of the others involved but having made its findings, the Tribunal is now called upon to exercise the power given to it by section 562 of the Legal Profession Act 2004. The Tribunal is of the view that the principles referred to in paragraphs 15 - 17 below, in this case, require that its order be made, without regard to the fact that disciplinary proceedings may not have been taken against two of the legal practitioners involved.

13 Because of the objective seriousness of the barrister’s conduct and the legal principles referred to below, the other submissions made on behalf of the barrister do not persuade the Tribunal to only caution the barrister.

The seriousness of the conduct

14 The Tribunal repeats that it accepts that the barrister gave his evidence truthfully to the best of his recollection. It is also of the view that the barrister did not see that he was doing anything wrong in negotiating the settlement agreement and that he did not intend to do anything which had the tendency to impair the Tribunal’s capacity to do justice in the proceedings. The Tribunal accepts that the barrister has conducted himself as described in paragraphs 7 and 8 above and that he is held in the highest regard by the profession. The Tribunal also accepts that the barrister has been greatly affected by the stress of this proceeding. However none of those findings affects the objective seriousness of the conduct. Conduct which has the tendency to impair a Court’s or Tribunal’s capacity to do justice in a proceeding, is by its very nature, extremely serious. It has the capacity to subvert the proceedings.

Relevant principles to apply

15 The Tribunal is of the view that the principles which it should apply are those identified in paragraph 10 (d) above. Although the facts in Hamman and Foreman are distinguishable from the facts here and although both those cases involved intentional wrongdoing where submissions had been made that the legal practitioners’ names be removed from the Rolls, the Tribunal is of the view that the order which it makes must contain an element of deterrence.

16 In Foreman, Giles AJA at 471B - C said: “And the public, ... , must be able to repose confidence in legal practitioners, so an element in deterrence is an assurance to the public that serious lapses in the conduct of legal practitioners will not be passed over or lightly put aside, but will be appropriately dealt with.”

Mahoney JA in the same case said:

“In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done” (441B - C).

“It is also, I think, relevant for the court to take into account the effect which its order will have upon the understanding, in the profession and among the public, of the standard of behaviour required of solicitors.”

Application of the above legal principles to the facts

19 The Tribunal is of the view that a reprimand is the appropriate order to make. It will have the effect of demonstrating to the profession and the public that the conduct of the barrister was a serious lapse and that such conduct will not be passed over or lightly put aside but will be appropriately dealt with by this Tribunal.

20 The Tribunal notes that counsel for the barrister agreed that if there was to be a reprimand, it would be a public reprimand, the Tribunal not having the power to privately reprimand (see subsection 562 (8) Legal Profession Act 2004).

Costs

21 A submission was made on behalf of the barrister that no order for costs should be made against him. The basis of this submission was to the following effect: the Council failed in its application for an order that the barrister was guilty of professional misconduct; the initial position of the Council was that it did not accept that there was an agreement that Mr Nichols would give evidence if served with a subpoena requiring him to do so; because the Council would not withdraw the allegation of professional misconduct, the barrister was obliged to defend the proceedings; if the allegation of professional misconduct had been withdrawn then the proceedings may have taken a different course and in any event there would probably have been a substantial saving in hearing time.

22 The Council’s response was to the effect that:

(a) the submission made on behalf of the barrister concerning the agreement that Mr Nichols would give evidence if served with a subpoena, showed a misunderstanding of the Council’s position,

(b) the Council’s position had always been that any agreement that Mr Nichols would give evidence if served with a subpoena, did not mean that the settlement agreement had no potential to obstruct the course of justice in the Tribunal,

(c) it was never part of the Council’s case that there was an agreement not to give evidence even if Mr Nichols was served with a subpoena; and

(d) furthermore there was in reality no additional time taken up with the pressing of the allegation of professional misconduct.

The Council also drew the Tribunal’s attention to subsection 155 (2) of the Legal Profession Act 1987.

23 Section 566 of the Legal Profession Act 2004 relevantly provides:

“(1) The Tribunal must make orders requiring an Australian legal practitioner whom it has found to have engaged in unsatisfactory professional conduct or professional misconduct to pay costs (including the costs of the Commissioner, a Council and the complainant), unless the Tribunal is satisfied that exceptional circumstances exist.

(2) The Tribunal may make orders requiring an Australian legal practitioner whom it has not found to have engaged in unsatisfactory professional conduct or professional misconduct to pay costs (including cost of the Commissioner, a Council and the complainant), if satisfied that:

(a) the sole or principal reason why the proceedings were commenced in the Tribunal was a failure of the practitioner to co-operate with the Commissioner or a Council, or

(b) the practitioner has contravened an order of the Tribunal made in the course of proceedings concerned, or

(c) there is some other reason warranting the making of an order in the particular circumstances.

(3) The Tribunal may make orders requiring payment of an Australian legal practitioner’s costs from the Public Purpose Fund, but may do so only if satisfied that the practitioner did not engage in unsatisfactory professional conduct or professional misconduct and the Tribunal considers that special circumstances warrant the making of the orders. The Tribunal is to have regard to the length and complexity of the proceedings when making a determination under this subsection.

...”

25 The Tribunal is therefore of the view that it must make an order requiring the barrister to pay the costs of the Council in respect of the finding that the barrister engaged in unsatisfactory professional conduct.

26 This litigation was conducted by the parties with almost no time spent on the question whether the barrister’s conduct constituted professional misconduct. A submission was made on behalf of the barrister that the entry into the settlement agreement by Mr Nichols and Mr Kearney, indicated peer approval of its terms, but there was no evidence led by the parties directed only to the question whether the conduct constituted professional misconduct.

27 Detailed written submissions were made by the parties and apart from the Council making a one sentence submission that the barrister’s conduct was capable of constituting professional misconduct, the question of professional misconduct was not addressed by either party in those submissions. The parties concentrated on the establishment of the facts, the relevant legal principles applicable to those facts and whether misconduct was thus established (without differentiating between professional misconduct and unsatisfactory professional conduct).

28 In those circumstances the Tribunal is of the view that the costs incurred by the Council in seeking an order that the barrister was guilty of professional misconduct are, for practical purposes, negligible. In other words if the Tribunal made an order to the effect that the whole of the Council’s costs be paid by the barrister, that would not, in practical terms, impose an obligation upon the barrister to pay an amount of costs applicable solely to the question whether the barrister was guilty of professional misconduct. It would also not, in practical terms, impose an obligation upon the barrister to pay an amount greater than the amount of costs incurred by the Council in seeking an order that the barrister was guilty of unsatisfactory professional conduct.

29 Accordingly the Tribunal is satisfied that these are reasons warranting the making of an order pursuant to subsection 556 (2) of the Legal Profession Act 2004. The order for costs which the Tribunal will make will therefore be made pursuant to subsections 556 (1) and (2) of that Act.

The Tribunal makes the following orders:

1. An order reprimanding David Keith Louis Raphael; and

2. An order requiring David Keith Louis Raphael to pay the costs of the Council of the New South Wales Bar Association of this proceeding. If the amount of those costs cannot be agreed between the parties then the amount is to be assessed by a costs assessor under Part 3.2 of the Legal Profession Act 2004.