REASONS FOR DECISION

1 In these proceedings the Council of the New South Wales Bar Association (the “Bar Association”) alleges that a barrister, Alexander Stanislaw Howen (the “Barrister”), engaged in professional misconduct or alternatively unsatisfactory professional conduct in the following respects:

“(i) The Barrister “failed without reasonable excuse, to comply with a Notice under section 152(1) of the Legal Profession Act 1987, dated 3 November 2003, by the date specified in the Notice, or within periods of extension of time granted for compliance” by the Bar Association.

(ii) The Barrister “failed to comply with an undertaking given to the Bar Association on 28 October 2003 that he would respond to a Notice under section 152(1) of the Legal Profession Act 1987 within a period of 21 days from the date of service of the Notice upon his solicitors or, by implication, within periods of extension of time granted for compliance by the Bar Association.”

Factual Background

2 The proceedings arise out of the following factual circumstances.

3 On 25 February 2002, the Legal Services Commission initiated complaints against the Barrister relating to the Barrister’s appearance before the Industrial Relations Commission on 22 December 1999 in the matter of Iverson v Qantas Airways Limited. That appearance by the Barrister is the subject of proceedings before this Tribunal numbered 062009.

4 On 14 February 2003 the Bar Association caused proceedings to be commenced in this Tribunal in relation to an allegation that the Barrister failed to comply with a Notice issued under section 152 of the Legal Profession Act 1987 requiring him to provide information and produce documents relating to the complaints initiated by the Legal Services Commissioner.

5 On 28 October 2003, the Tribunal made consent orders dismissing those proceedings. When making those orders, the Tribunal noted an undertaking given by the Barrister (the Respondent in those proceedings) to the Bar Association as follows:

“(a) that Messrs Beazley Singleton are instructed to accept service of any further Notice under section 152(1) of the Legal Profession Act that the informant may serve within seven (7) days;”

(b) that the Respondent will respond to any such further Notice within a period of twenty one (21) days from the date it is served on Messrs Beazley Singleton.”

Section 152(1) Notice dated 3 November 2003

6 On 3 November 2003, the Bar Association issued a new Notice to the Barrister under section 152(1) of the Legal Profession Act 1987 by sending it to Messrs Beazley Singleton. The Notice required compliance with it to occur by the close of business on 25 November 2003. There does not appear to be any direct evidence of the date of service of the Notice but the requirement in it of compliance by 25 November 2003 assumed that it would be served no later than 4 November 2003, as a period of 21 days was that specified in the undertaking noted by the Tribunal. The hearing before us proceeded upon the assumption that the correct date for compliance was 25 November 2003 and we accordingly proceed upon the same assumption in these Reasons for Decision.

7 The Notice required the provision, verified by statutory declaration, of various items of information. It also required production of various documents at the office of the Bar Association. These included any diaries of the Barrister which recorded any barrister’s work performed by the Barrister on any of the days covered by memoranda of fees rendered by the Barrister in the matter of Iverson v Qantas Airways Limited in the period 1 January 1999 to 31 December 1999.

8 In a letter of 25 November 2003, Beazley Singleton said to the Bar Association’s solicitors:

“Before completing our client’s statutory declaration, our client requires access to the following documents:

1. Affidavit of Mr Iverson tendered in the Full Court Hearing and the Annexures and Exhibits;

2. Chronology relied upon by Mr Iverson in closed (sic) submissions in reply;

3. Authority from Mr Iverson to waive privilege in respect of the matters to be disclosed to the Bar Association of NSW.

The waiver is important as our client’s evidence may directly conflict with the sworn evidence of Mr Iverson, which he gave before both the Commissioner and the Full Bench.

Our client needs to retain his papers to finalise the reply upon receipt of the further material. We believe it would be better that there need be one response rather than piece meal”.

9 By a response dated 5 December 2003, the Bar Association supplied the two requested documents. As to the third matter raised on behalf of the Barrister, the Bar Association said:
“In relation to your request for an authority from Mr Iverson to waive privilege in respect of matters to be disclosed to the New South Wales Bar Association, it is for your client to obtain such an authority.

I refer you to section 171S(2) of the Legal Profession Act 1987, which provides that:

“A legal practitioner may disclose a matter to the Commissioner, a Council or the Tribunal in breach of any such duty of confidentiality if the Commissioner, Council or Tribunal is satisfied that it is necessary for the practitioner to do so in order to rebut an allegation in the complaint.”

Your client may disclose a matter to the Council in breach of any duty of confidentiality if the Council is satisfied that it is necessary for him to do so in order to rebut an allegation in the complaint.

Therefore, if your client’s position is that he cannot respond to the complaint unless he has authority to waive privilege from Mr Iverson, he should:

(i) provide reasons as to why it is necessary for him to obtain such an authority, and

(ii) what attempts have been made by your client and when to obtain Mr Iverson’s authority, and

(iii) request that consideration be given by the Bar Council to determine whether or not it is necessary for him to obtain such an authority.

I trust that your client now has the requisite information with which to respond to the section 152 notice issued upon him. In view of the upcoming Christmas period, the Committee is minded to grant your client further time in which to respond, namely by 30 January 2004.

I look forward to your client’s reply in due course” (sic)

10 There is in evidence a copy of a letter from the Barrister to the Bar Association bearing a date of 26 April 2004. The Barrister says that he sent the original of that letter to the Bar Association on or about that date. The evidence from the Bar Association is that that letter is not on its file and therefore appears not to have been received. A draft report of an investigation by a Professional Conduct Committee of the Bar Association was sent to the Barrister under cover of a letter of 20 July 2004. That letter required a response by the close of business on 4 August 2004. The draft report did not refer to the receipt of a letter of 26 April 2004 from the Barrister.

11 By letter of 4 August 2004, the Barrister responded to the letter of 20 July 2004 and enclosed with his response a copy of the letter dated 26 April 2004, which he said, he had sent. It is not necessary for us to determine whether the letter of 26 April 2004 was in fact sent as if, as the Bar Association contends, the Barrister was required to comply with the section 152(1) notice by the extended date of 30 January 2004, the Barrister failed to comply with that requirement whether or not he sent the letter of 26 April 2004.

12 Our view is that the Barrister did in fact fail to comply with the Notice by 30 January 2004 and that he did not have a reasonable excuse for that failure.

13 It is true that much of the information and documentary material which was sought by the Notice would have been likely to be the subject of client privilege to which Mr Iverson was entitled. However, as pointed out by the Bar Association in its letter of 5 December 2003, there were two means by which the Barrister could have attempted to overcome that hurdle. Either authority could have been sought from Mr Iverson or the Bar Council could have been requested to sanction disclosure pursuant to section 171S(2).

14 As to the former, the Barrister apparently made no effort to obtain Mr Iverson’s authority until long after the time for compliance with the Notice had passed, as he said in his letter of 26 April 2004 to the Bar Association that he attempted to contact Mr Iverson “in March 2004”. This clearly implied that he had not attempted to do so before then.

15 As to the latter, he did not respond, within the time required for compliance with the Notice, to the Bar Association’s invitation made in its letter of 5 December 2003 to provide reasons why it was necessary for him to obtain authority in order to respond to the Notice, to describe attempts made to obtain authority from Mr Iverson and to request the Bar Council to act under section 171S(2).

16 Bearing in mind the nature of the information and documentation sought by the section 152 Notice and the fact that an appropriate resolution was passed by the Bar Council on 12 August 2004 in response to the Barrister’s request by letter of 4 August 2004, there is every reason to expect that an appropriate resolution would have been promptly passed if sought by the Barrister prior to 30 January 2004.

17 Certainly, if the Barrister had promptly sought the passage of such a resolution following receipt of the Bar Association’s letter of 5 December 2003, he would have had a strong argument that he had a “reasonable excuse” within the meaning of section 152 for not complying with at least the bulk of the Notice if the resolution was not passed in time to enable him to meet the 30 January 2004 deadline.

18 No such timely request having been made and no attempt having been made to obtain authority from Mr Iverson, our conclusion however is that the Barrister had no reasonable excuse for not complying with the Notice by 30 January 2004.

19 This conclusion extends to such of the requested information and documentation as may not have been the subject of Mr Iverson’s privilege either on the basis that it was reasonable to regard this limited material as ancillary to the bulk of what was required and that whether or not there was a reasonable excuse depends on whether there was a reasonable excuse in relation to the bulk of the material (which there was not), or on the basis that if that material was properly to be treated on a stand alone basis, there was no reasonable excuse for not providing it.

20 It follows from our conclusion that there was no reasonable excuse for non-compliance with the s152 Notice by the extended compliance date of 30 January 2004 that there was a breach by the Barrister of the undertaking given by him to the Bar Association on 28 October 2003 and noted by the Tribunal.

Events post 30 January 2004

21 As pointed out above, the Barrister’s letter of 26 April 2004, which the Bar Association asserted was not received until a copy arrived with the Barrister’s letter of 4 August 2004, sought an appropriate resolution by the Bar Council as to confidentiality.

22 The Bar Association informed the Barrister of the passing of that resolution by letter of 25 August 2004 and extended to 9 September 2004 the time for responding to the letter of 20 July 2004 enclosing the Professional Conduct Committee’s draft report.

23 Thereafter there were some communications between the Barrister and the Bar Association, which led to the Bar Association extending the time for a response to its letter of 20 July 2004 until 5 October 2004.

24 On 13 October 2004, the Barrister’s letter dated 10 October 2004 was delivered to the Bar Association. This letter responded to both the section 152 Notice and the draft Professional Conduct Committee report. The Barrister explained the delay between 5 October 2004 and 13 October 2004 as arising out of a family bereavement. We accept that explanation and accordingly that the Barrister had a reasonable excuse for non-compliance during that period.

25 As to one of the requests for information in the section 152 Notice (that in paragraph (xii)), the Barrister sought clarification by the provision of transcript references. So far as the production of documents under the section 152 Notice was concerned, the Barrister said as to his diary that:

“… the 1999 diary contains confidential entries not relevant to the Association’s inquiry into my conduct. Could you please advise what processes could be put into place to prevent access to any person of irrelevant confidential entries …”

The response to the section 152 Notice was not verified by statutory declaration, as had been required by the terms of the Notice. In an email sent shortly before delivery of the letter of 10 October 2004, the Barrister referred to the fact that the response was not verified and undertook to arrange for a verified version to be delivered to the Bar Association.

26 By further email to the Bar Association of 13 October 2004, the Barrister asked whether it would be sufficient if he lodged a statutory declaration which referred to the letter dated 10 October 2004 or whether he should annex a copy of the letter to the statutory declaration.

27 The Bar Association responded to the Barrister by letter of 16 November 2004.

28 The letter indicated that in light of the Barrister’s responses to the Professional Conduct Committee’s draft report, it did not require a response to paragraph (xiii) of the Notice. (see paragraph 25 above)

29 Secondly, as to production of the Barrister’s diary, the letter said:

“… It is requested that you please provide the diary to me by close of business on Monday 22 November 2004. Please note that the diary will be used only for the purposes of this investigation and that access will be limited, at this stage, to members of the Professional Conduct Committee investigating the matter and, possibly, members of the Bar Council. It is anticipated that the diary will be required until the conclusion of the investigation into this complaint and that copies may be taken of relevant portions (only)”.

31 By email of 23 November 2004, the Barrister said:

“My wife clears our PO Box on an almost daily basis. I have been keeping a look out for the letters you told me were sent re the two outstanding matters.

The letters were in the PO Box yesterday, however my wife forgot to give them to me yesterday so I have not yet read them. I will not see them until the end of the day. I am on the way to Burwood Local Court.

I will respond when I have seen them.”

33 On 9 December 2004, the Barrister attended at the Bar Association and produced his brief. The diary note of Ms Mobbs, a Bar Association employee, of a telephone conversation with the Barrister at the time of that delivery included the following:

“AH Saw letter from you but haven’t looked at it. Have received letter answering queries re diary etc. but have mislaid it – could you send me another copy by email.

KM Yes but won’t be until later this evening.

AH Have brief – think most of it is there. OK to get receipt from reception?

KM Yes, the receptionist will be able to give him a receipt. Do you have the diary?

AH No, didn’t bring it in – wanted to look at letter first.

KM I will email.”

35 By letter of 16 December 2004, the Bar Association noted that it had not received the Barrister’s diary or his response to the section 152 Notice verified by statutory declaration. They were requested as a matter of urgency.

36 By letter of 18 March 2005, the Bar Association noted that the diary and the statutory declaration had still not been received. The Barrister was requested to provide them as soon as possible.

37 In a letter of 17 May 2005 the Bar Association noted that these had still not been received. They were requested to be produced by 25 May 2005.

38 On 20 May 2005 the Barrister called Ms Sinclair of the Bar Association. As to the statutory declaration, he said that he had completely forgotten about it. As to the diary, he said that it contained a mixture of professional and personal entries and that there was material, which, if disclosed, would put him in breach of National Crime Authority restrictions. There were further discussions in the following few days, culminating in the Barrister on 26 May 2005 producing his diary, means of protecting confidentiality having been agreed between the Barrister and the Bar Association.

39 On 27 May 2005, the Bar Association wrote to the Barrister noting that a statutory declaration had still not been provided. It asked for it to be forwarded “by return”.

40 The statutory declaration was provided to the Bar Association on 3 June 2005.

Production of the Barrister’s Brief

41 Even if it be accepted in the Barrister’s favour that he needed his brief to formulate a response to the request for information made by the section 152 Notice and to respond to the draft Professional Conduct Committee Report, that excuse was not available after the Barrister’s response dated 10 October 2004 was lodged on 13 October 2004. Indeed, that response said that the Barrister was arranging to deliver the brief to the Bar Association office (paragraph 25 above). It was following a reminder of 6 December 2004 (paragraph 32 above) that the brief was delivered on 9 December 2004 (paragraph 33 above).

42 In our view the Barrister had no reasonable excuse in the period 13 October 2004 to 9 December 2004 for not producing the brief to the Bar Association.

The Barrister’s Diary

43 In his letter of 10 October 2004, the Barrister raised for the first time a question of confidentiality in relation to certain entries in the diary (paragraph 25 above). The Bar Association’s response of 16 November 2004 gave an assurance as to the extent of access to the diary (paragraph 29 above). Despite reminders of 6 and 16 December 2004 and 18 March and 17 May 2005 (see paragraphs 32, 35, 36 and 37 above) the Barrister did not take steps towards production of the diary until 20 May 2005. On that date he raised for the first time the possibility of breach of National Crime Authority restrictions (paragraph 38 above). Discussions with the Bar Association in the following days led to a mutually acceptable arrangement to protect confidentiality (also paragraph 38 above).

44 Again assuming in favour of the Barrister that the diary was required by him to prepare his letter of 10 October 2004, he did not in our view in the period 13 October 2004 (being the date upon which the 10 October 2004 letter was delivered) until 20 May 2005 have any reasonable excuse for not producing the diary to the Bar Association.

45 The possibility, or indeed fact, of the diary containing confidential entries not relevant to the Bar Association’s investigation did not in our view constitute a reasonable excuse for not producing the diary for the period referred to. As what occurred in the days following 20 May 2005 demonstrated, there was always the prospect, which we consider was a probability approaching certainty, that an acceptable arrangement could be made with the Bar Association to protect confidentiality. It was not in our view open to the Barrister to rely upon the confidentiality of some entries as an excuse for non-production in a period when he took no steps to produce the diary and to have confidentiality maintained.

Verification by Statutory Declaration

46 The Barrister’s response dated 10 October 2004 to the section 152 Notice was not verified (see paragraph 25 above). His enquiry by email of 13 October 2004 (paragraph 26 above), which was responded to by the Bar Association on 16 November 2004, did not in our view provide a period of grace for the Barrister during which he had a reasonable excuse for non-supply of the statutory declaration as the section 152 Notice was couched in terms which clearly indicated what was to be done.

47 Despite reminders of 16 December 2004 and 18 March and 17 May 2005 (paragraphs 35, 36 and 37 above), the statutory declaration was not provided to the Bar Association until 3 June 2005 (paragraph 40 above), the Barrister having asserted to the Bar Association on 20 May 2005 that he had “completely forgotten about it” (paragraph 38 above). In our view, at no time between 13 October 2004 and 3 June 2005 did the Barrister have a reasonable excuse for not providing the statutory declaration.

Various additional responses of the Barrister

48 It was asserted on behalf of the Barrister that extensions of time granted by the Bar Association for responding to its letter of 20 July 2004 enclosing the draft Professional Conduct Committee report (paragraphs 22 and 23 above) related also to compliance with the s152 Notice and retrospectively authorised the Barrister’s non-response to the section 152 Notice up until the time those extensions were granted and then authorised further periods of non-response until 5 October 2004.

49 We do not accept this submission. First, there is nothing in the letters granting the extensions suggesting that the extensions were intended to apply in respect of the section 152 Notice as well as in the respect of the response to the draft Professional Conduct Committee report, nor that the extensions were intended to apply in any respect retrospectively. Secondly, even if the position were otherwise, if the Barrister was in breach of his obligations to respond to the Notice, a later grant of approval by the Bar Association to that having occurred could not expunge that breach once it had occurred. At best, the reasons given for the later grant of authority would be a matter to be considered in deciding whether there had been a reasonable excuse of non-compliance in the earlier period. Here, nothing that was later said by the Bar Association indicated that the Barrister may have had a reasonable excuse in the earlier period.

50 Secondly, the Barrister said that it was reasonable for him to assume that when being granted time to respond to the draft Professional Conduct Committee report he was also being given further time to respond to the section 152 Notice. We have doubts as to whether this was so but making an assumption in the Barrister’s favour that it was in fact so does not affect the conclusion we have expressed above that the Barrister did not have a reasonable excuse for not complying with the section 152 Notice by 30 January 2004. Furthermore, it does not affect the conclusion at which we also arrive that the Barrister’s non-compliance without reasonable excuse continued at least until the date of the Barrister’s letter of 26 April 2004 which we assume in his favour was delivered to the Bar Association on or about that date. Arguably, on the assumptions we have made above, the Barrister had an excuse for non-compliance until 5 October 2004 and, as we have found, from then until 12 October, 2004 but he did not, as indicated above, have any reasonable excuse for not thereafter complying with the section 152 Notice in respect of production of his brief and verification of his response. Those matters were not attended to until 9 December 2004 and 3 June 2005 respectively (see paragraphs 42 and 47 above). In respect of his diary, the Barrister had no reasonable excuse after 13 October until 20 May 2005 (paragraph 44 above).

51 Thirdly, the Barrister submitted that “competing professional obligations constituted a reasonable excuse for any failure to comply with the Notice or undertaking”. We do not regard the existence of any such obligations as constituting a reasonable excuse for failure to comply with the Notice or undertaking. As was apparent from the responses ultimately made by the Barrister to the section 152 Notice, responding to it did not constitute an onerous or time consuming task. It can be assumed that many, if not most, practitioners to whom section 152 Notices are directed are busy. It would defeat the objectives of the legislative provisions as to the issue of notices to regard an assertion by a practitioner that he or she was too busy to answer the notice as a reasonable excuse for not doing so.

52 Fourthly, the Barrister submitted that there would “plainly be duplication in finding both grounds of the complaint made out”, with the consequence that the second complaint should be dismissed. The decision in Vrisakis v ASC (1993) 11 ACSR 162 was relied upon.

53 We do not consider that there is any substance in this argument. This is not a case where one count contained in the Application embraces more than one instance of professional misconduct. Rather, there are two separate counts containing separate allegations of professional misconduct. The fact that the allegations in each count are based upon the same factual circumstances is of no consequence. Indeed, it reflects a situation commonly encountered, that is, one where particular conduct is alleged to be improper for two distinct reasons.

54 Fifthly, the Barrister asserted that he bore no onus to establish a reasonable excuse. We accept this submission to the extent that it relates to the legal onus of proof. We consider the legal onus of proof to rest upon the Bar Association. Nevertheless, as correctly conceded by the Barrister, “as a matter of common sense, the discharge of that onus may fall to be considered by reference to the excuse proffered by the legal practitioner”. Thus, the practitioner has in our view an evidentiary onus to point to circumstances, which are worthy of consideration as possible excuses. It is then for the Bar Association to satisfy the Tribunal that matters so identified by the practitioner did not constitute reasonable excuses.

Summary of conclusions as to absence of reasonable excuse

55 In summary, our conclusions as stated above are that the Barrister had no reasonable excuse for non-compliance with the section 152 Notice:

(i) as to the whole of it, in the period 30 January 2004 to 26 April 2004.

(ii) additionally, as to the requirement for production of his brief in the period 13 October 2004 to 9 December 2004.

(iii) additionally, as to the requirement for production of his diary, in the period 13 October 2004 to 20 May, 2005.

(iv) additionally in relation to verification by statutory declaration of his response to the Notice, in the period 13 October 2004 to 3 June 2005.

56 Section 152(4) of the Legal Profession Act 1987, which was in force at the relevant times, provided in relation to requirements made under section 152(1) that:

“A legal practitioner who, without reasonable excuse, fails to comply with such a requirement is guilty of professional misconduct.”

58 The seriousness of the misconduct is in our view emphasised by:

(i) the fact that the issue of the Notice occurred as a result of the settlement of earlier legal proceedings and was to be complied with within a period the Barrister can be taken to have agreed was reasonable.

(ii) what we consider to have been the absence on the part of the Barrister of any sense of urgency in complying with the Notice.

(iii) the significant length of the periods during which the Barrister was in default in compliance with the Notice.

60 Whilst the failure to comply with an undertaking given to another solicitor does not always amount to professional misconduct, it can and often does so (see Law Society of New South Wales v Waterhouse [2002] NSWADT 204 at [22-26].)

61 An undertaking given to the Barrister’s professional association which is charged with the duty to investigate allegations of professional misconduct is in a similar position although the likelihood that non compliance with an undertaking will amount to professional misconduct is in our view even stronger in the case of an undertaking given to a professional association than it is in the case of an undertaking given to a fellow practitioner (see as to an undertaking to the Law Society of NSW, Law Society of NSW v Konstantinidis (No.2) [2005] NSWADT 87).

62 The circumstances referred to in paragraph 58 above and the fact that the undertaking was given to the Bar Association lead us to the conclusion that the Barrister’s breach of the undertaking here amounted to professional misconduct.

Legal Profession Act 2004

63 On 8 September 2005, the Bar Association resolved to make the complaints, which have given rise to these proceedings. They were communicated to the Barrister by letter of 19 September 2005. These events occurred prior to the commencement of the Legal Profession Act 2004 on 1 October 2005. It follows that the conduct in question in these proceedings also occurred prior to that commencement and therefore whilst the 1987 Act was in force.

64 Proceedings in this Tribunal were not however commenced until after the commencement of the 2004 Act.

65 As a result, Chapter 4 of the 2004 Act applies to these proceedings subject to the caveat that the Tribunal may not make any determination or order of a disciplinary nature that is more onerous than could have been made under the Legal Profession Act 1987 (paragraph 16, Schedule 9, of the 2004 Act).

66 The application to the present proceedings of the 2004 Act rather than the 1987 Act is not of significance as the conclusions at which we have arrived are based upon the general law concept of professional misconduct which is a concept applicable under both the 1987 Act and the 2004 Act.

Orders

A hearing as to penalty has been fixed to occur on 27 June 2008.