Outline of the Application

1 On 5 June 2008 the Council of the NSW Bar Association commenced this proceeding against Mr Bradley Slowgrove by applying for an Original Decision, however following minor factual amendments to the particulars, that document was supplanted without objection by an Amended Application filed 27 February 2009, in which the Applicant Council sought inter alia:

“ A finding that the respondent, Bradley Slowgrove, has been guilty of professional misconduct or unsatisfactory professional conduct with respect to the conduct contained (sic) the Grounds for Application below.

An order in terms of any one or more of the following paragraphs (a), (b), (c), (d) or (e) of s562(2) of the Legal Profession Act 2004 of paragraphs (a) or (b) of s562(4) of the Legal Profession Act 2004, as the Tribunal thinks fit.
An order that the decision of the Tribunal be published.
An order that the respondent pay the costs of the applicant of these proceedings. …”

2 The Amended Application relevantly alleges that on or about 2 March 2006 the respondent drafted and advised the sending by his solicitor of a letter to the Criminal Registry of Central Local Court seeking the disqualification of His Honour Magistrate Moore in relation to a hearing scheduled for 3 March 2006 in extradition proceedings concerning a lay client to whom we refer as “CC.” It is asserted that the contents and wording of the letter as it was sent constitute professional misconduct or unsatisfactory professional conduct, having regard to the circumstances, because:

(a) the letter threatened severe personal consequences if on 3 March 2006 Magistrate Moore sat in the extradition proceedings and/or refused to disqualify himself from sitting in the proceedings

(b) the letter was expressed in inappropriate terms;

(c) the letter was intended to or reasonably to be understood as intended to discourage the Magistrate from sitting in the proceedings and /or refusing to disqualify himself from sitting in the extradition proceedings

(d) the letter was intended to or reasonably to be understood as intended to inappropriately influence or attempt to influence a judicial officer in the discharge of a function as a Magistrate in the extradition proceedings;

(e) the respondent caused the letter to be sent to the Local Court in the terms in which it was written without first being sent to the Commonwealth Director of Public Prosecutions and the consent of the Director to send the letter to the Local Court being sought.

3 The essential history of the respondent as a practitioner and the investigation of the complaint by the Applicant, including the flow of correspondence between the Association and the Respondent is set forth in the affidavit of Philip Alan Selth, Executive Director of the Bar Association, sworn 3 June 2008 and marked Exhibit 1. It is ultimately uncontroversial in the proceeding that the Respondent has practised as a barrister since May of 1984; was issued with an unconditional barrister’s practising certificate in July 1988 and held one continuously until 30 June 2007. He was at all material times a “local lawyer” within the meaning of s.6 of the Legal Profession Act 2004 and until 30 June 2007 he was an Australian legal practitioner within the meaning of s6 of the legislation. He remains on the Roll of Legal Practitioners.

4 Despite earlier written material to the contrary, (to which we will later return) few of the facts and events requiring consideration in this proceeding were ultimately in dispute by the conclusion of the hearing conducted before us. In outline they are that following an extradition request by the government of Croatia, on 19 January 2006, a provisional arrest warrant was issued by a magistrate in Perth pursuant to s12(1) of the Extradition Act 1988 (Cth) and later that day CC was arrested in Sydney. On 20 January 2006, the Respondent was briefed by a practitioner we will refer to as “AA,” a solicitor in the employ of the firm we refer to as “BB Partners” on behalf of CC and he appeared for CC when he was brought before Magistrate Moore in Central Local Court and remanded in custody. On 27 January, the Respondent appeared again on behalf of CC and made a bail application. Magistrate Moore refused bail and adjourned the proceedings to 10 February 2006, on which date they were further adjourned to 3 March 2006 for mention. The transcripts of each of these appearances are annexed to the affidavit of Alan William Blanch sworn 27 February 2009 and marked Exhibit 2.

5 Meanwhile, on the respondent’s advice, on 25 January 2006, proceedings were commenced on behalf of CC against the Commonwealth of Australia and various public officeholders in the original jurisdiction of the High Court for a writ of habeas corpus and prohibition, alleging inter alia, that s.15 of the Extradition Act and the Extradition (Croatia) Regulations 2004 were invalid. Subsequently Magistrate Moore and the Minister for Customs and Justice were joined in those proceedings, which were mentioned before Gummow J on 15 February and again on 23 February and were fixed for hearing before the Full Court of the High Court on 13 April 2006.

6 On 28 February a letter on BB Partners’ letterhead concerning the CC proceedings was forwarded to Magistrate Moore referring to his “position as a defendant in the High Court proceedings” and advising of CC’s intention of reapplying for bail. This letter goes on to “require that you immediately recuse yourself from sitting and the matter must be listed before another magistrate on 3 March 2006.” Copies of this letter were forwarded that day to the Registrar of Central Local Court and the Commonwealth Director of Public Prosecutions (who by now had carriage of the extradition proceedings.)

7 By 2 March 2006 enquiries had revealed to AA and the Respondent that CC’s matter was to be again listed before Magistrate Moore on the following day. Without dwelling on the precise intricacies of the transaction between solicitor and counsel, it suffices to say that the annexures to the affidavit of Mr Selth demonstrate that a further draft letter was prepared and settled by Mr Slowgrove, who, after some ambiguity in written material as noted below, now concedes his participation in that process. Ultimately the letter of 2 March forwarded on the letterhead of BB Partners’ said:

“Re: CC

Our contact with the registry reveals that this matter is to be listed before Magistrate Moore on 3 March 2006.

We advise there will be an immediate application in open court to disqualify Magistrate Moore should he sit.

We expect that another Magistrate will be provided by the Registry. As you are aware Magistrate Moore will not be able to make any direction or order in the matter and we will be seeking no order or direction from Magistrate Moore.

We refer you to the transcript 27 January 2006 at p:11 point 40. where Magistrate Moore makes the prejudicial observation that the NSW Crimes Act may be applicable to alleged offences against prisoners of war should such alleged offences occur within New South Wales. He has already prejudiced an extradition objection that our client will be making in these unconstitutional and illegal proceedings which we protest.

We refer to the High Court transcript of the 15 February 2006 published on the High Court Website where Justice Gummow made a direction for referral of this matter to the Full Court.

Further direction for case preparation were made by Justice Gummow on 23 February 2006 where Mr Hughes Q.C. with junior counsel appeared. The matter has a hearing date before the Full Court in Canberra provisionally on 13 April 2006 subject to a directions hearing for readiness.

We note that we have liberty to apply on 3 days notice to the High Court and we will be speaking to Mr Hughes Q.C. about activating that liberty to apply should Magistrate Moore continue to sit.

We expect Magistrate Moore not to sit on this matter on Friday, 3 March 2006 and no application will be made to Magistrate Moore should he appear upon the bench tomorrow and/or refuse to disqualify himself. No application will be made to him concerning our client or otherwise.

We note that the orders sought in the High Court also include a claim for damages. We regard Magistrate Moore as personally liable for damages to our client for his false imprisonment from the 20 January 2006 onwards as well as other defendants.

Any question concerning indemnity between the defendants in the High Court for damages is a matter between those defendants. If Magistrate Moore sits and/or further refuses to disqualify himself in this matter will (sic) be seeking exemplary damages in our client’s false imprisonment suit which is also part of the High Court case.

We also note that Australian public officials have no immunity in regard to breaches of international law and we note the recent trials in Germany of public officials including judges in the former East Germany concerning the administration of justice in that failed former communist state. We recommend that Magistrate Moore take independent advice on these issues and not confine himself to the alleged parameters of Australian municipal law.

Copies of this letter have been sent to the Director of Public Prosecutions without prejudice to our objection to their appearance.

We thank you for your co-operation.”

The letter was signed by AA. It is uncontentious that in conformity with the content of the letter it was not forwarded to the Commonwealth DPP prior to despatch to the Court.

Outline of the Respondent’s Case

8 On 1 July 2008, the Respondent filed a Reply to the originating Application. That document comprised 2 pages of handwritten response and attached a number of other documents. The handwritten component reads:

“All allegations of the Applicant are denied and these proceedings are illegal. This matter is for the Federal Police, the Judicial Commission and the International Criminal Court. Allegations of serious and multiple criminality are made against members of the Bar Council. The following Crimes have been committed 1 Perverting the course of justice sections 42 and 43 Crimes Act (Com) 1914 2 Bureaucratic War Crimes sections 268.31, 268.32, 268.33, 268.52, 268.72 and 268.76 of the Schedule to the Criminal Code Act (Com) B Slowgrove (Do Not accept service)”

9 Attachments to the Reply comprise a document entitled “Complaint Against a Judicial Officer” being a further 2 handwritten pages detailing a complaint, apparently to be directed to the Judicial Commission concerning the refusal of bail by Magistrate Moore. A second typewritten document of some 15 pages entitled “REPLY TO AN APPLICATION” commences in the following terms:

“I reply to each of the grounds set out in the application but before the respondent deals with the false and misleading allegations in the application the following statement is made in regard to the entire application. The letter of 2 March 2006 has been leaked out of context and deliberately misrepresented in the application. The enclosed statements of Dr Marinkovich and Ms Cleary show how dangerous and desperate the members of the Bar Council are and how they have gone to extreme lengths to destroy the case of (CC). The respondent is concerned for his personal safety because of harassment by powerful criminals in the Bar Council, Commonwealth bureaucracy and the former Howard government who wish to cover up this criminal scandal by destroying (CC) and his counsel. There has also been intimidation of a witness in the (CC) case by Croatian counter intelligence officers. Evidence of this can be found in the local court transcript. A classified Croatian intelligence document is also part of that evidence.

(CC) and the respondent are protected persons under the 1949 Geneva Conventions on the laws of war implemented under Division 268 of the Schedule to the Criminal Code Act. The Tribunal has no jurisdiction in this matter unless there is an indictment under the Geneva Conventions Act and only a jury can determine Geneva war crimes matters under Australian law. The respondent is claiming compensation in excess of $750,000 for loss of his practice and fees from the members of the Bar Council, Hughes and the Commonwealth. The respondent will be applying for victims’ protection under the procedures of the International Criminal Court in The Hague. ...”

It continues with many paragraphs in similar vein of a series of disconnected allegations and irrelevancies, the contents of which are difficult to comprehend and little purpose would be served by their further elaboration here.

10 The next 2 documents attached are accounts by a Dr Mark Marincovich and a Zoja Cleary of an attendance by Mr Slowgrove at the rooms of Dr Skinner on the 26 June 2007, apparently for a psychiatric assessment. Next, there is attached a typewritten document entitled “Edited Chronology of Events” which chronicles appearances and activities by the respondent on behalf of CC together with his dealings with the Bar Association. This is followed by portions of a number of documents and transcript related to CC, and finally there is a document entitled “Report” by a Grant Niemann dated November 2006, opining on various issues of law and fact in relation to CC and attaching some transcript of evidence given by Mr Niemann.

11 A further Reply filed in response to the Amended Application is signed and dated by the Respondent, 2 October 2008. Apart from the 2 page handwritten cover sheet, it too comprises some 15 pages of typed response, some of it repetitive of the earlier documents, much of it unintelligible and apparently not responsive to the Application under consideration. Amongst the contents of this document, the Respondent states he has “permanently resigned from the applicant” and claims $500,000 loss of fees from Mr Selth and “other members of the applicant…arising from the failure of the applicant to issue the respondent with a practicing certificate from 1 July 2007…” It is not apparent to the members of the Tribunal whether these claims were sought to be brought before us or in other proceedings. The document contains denials of all the allegations in the original application. The balance of that material consists of a narrative of the later CC proceedings, in particular in the High Court where CC was represented by counsel other than Mr Slowgrove, interwoven with a scatter of allegations concerning those persons and Mr Selth. This document concludes with a paragraph stating:

“The respondent seeks the immediate dismissal of the Application for Original Decision by the applicant and will not be seeking a practicing certificate from the applicant. The respondent seeks costs.”

12 For completeness, we note that the Respondent later filed a Notice of Motion seeking relief not within the remit of this Tribunal, together with an affidavit in support of that motion, however it transpired during the course of the hearing that due to changes in Mr Slowgrove’s instructions to his representative, Mr Wallace, as the hearing progressed, those matters were all abandoned or specifically not relied upon and the relief sought therein not pursued. The respondent did not give evidence before us at the hearing, nor was any other evidence adduced by him, other than the tender of a copy of a translation of the Copy of the request for Extradition. Otherwise, the Respondent confined himself to matters of submission.

The Law

13 The definition provisions of the Legal Profession Act 2004 relevant to the determination of the principal issues in this matter are set out in the following sections:

496 Unsatisfactory professional conduct

For the purposes of this Act:

unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

497 Professional misconduct

(1) For the purposes of this Act:

professional misconduct includes:

(a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and

(b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

(2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the matters that would be considered under section 25 or 42 if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate and any other relevant matters.

Barristers Rule 56 provides:

A barrister must not, outside an ex parte application or a hearing of which the opponent has had proper notice, communicate in the opponent’s absence with the court concerning any matter of substance in connection with current proceedings unless:

(a) the court has first communicated with the barrister in such a way as to require the barrister to respond to the court; or

(b) the opponent has consented beforehand to the barrister dealing with the court in a specific manner notified to the opponent by the barrister

14 Although in a somewhat different context, in discussing the need for confidence as an aspect of the relative seriousness and specific vice in misconduct where it touches upon the relations between members of the practising profession and the judiciary, Spigelman CJ in NSW Bar Association v Cummins [2001] NSWCA 284, 52 NSWLR 279 at 284 elaborated the special considerations in the following terms:

“in some spheres significant public interests are involved in the conduct of particular persons and the state regulates and restricts those who are entitled to engage in those activities and acquire the privileges associated with a particular status. The legal profession has long required the highest standards of integrity. There are four interrelated interests involved. Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people. As Kitto J said in Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at 298:

“… the Bar is no ordinary profession or occupation. These are not empty words, nor is it their purpose to express or encourage professional pretensions. They should be understood as a reminder that a barrister is more than his client’s confidant, adviser and advocate, and must therefore possess more than honesty, learning and forensic ability. He is, by virtue of a long tradition, in a relationship of intimate collaboration with the judges, as well as with his fellow-members of the Bar, in the high task of endeavouring to make successful the service of the law to the community. That is a delicate relationship, and it carries exceptional privileges and exceptional obligations. If a barrister is found to be, for any reason, an unsuitable person to share in the enjoyment of those privileges and in the effective discharge of those responsibilities, he is not a fit and proper person to remain at the Bar.”

Even in a period where other values have become of significance to the regulation of the legal profession - I refer particularly to the application of competition principles in professional regulation - the traditional professional paradigm still has a vitality of abiding significance. Neither the relationship of trust between a legal practitioner on the one hand, and his or her clients, colleagues and the judiciary on the other hand, nor public confidence in the profession, can be established or maintained, without professional regulation and enforcement.”

15 Much earlier, where a more public form of misbehaviour was being considered in the judgment of the High Court in Clyne v NSW Bar Association (1960) 104 CLR 186 at 200, similar sentiments on the special nature of the relationship were expressed as:

“ a member of the Bar enjoys great privileges both de jure and de facto. In particular his privilege in relation to defamatory statements made by him in court is not qualified but absolute. It is perhaps worth while to quote yet again the oft-quoted words of Lopes L.J. in Royal Aquarium and Summer and Winter Garden Society v. Parkinson (1892) 1 QB 431 . His Lordship said : "This 'absolute privilege' has been conceded on the grounds of public policy to ensure freedom of speech where it is essential that freedom of speech should exist, and with the knowledge that Courts of justice are presided over by those who from their high character are not likely to abuse the privilege, and who have the power and ought to have the will to check any abuse of it by those who appear before them" (1892) 1 QB, at p 451 . The last thing we would wish to do would be to say anything which might be thought to curtail this freedom of speech, which public policy demands. Cases will constantly arise in which it is not merely the right but the duty of counsel to speak out fearlessly, to denounce some person or the conduct of some person, and to use such strong terms as seem to him in his discretion to be appropriate to the occasion. From the point of view of the common law, it is right that the person attacked should have no remedy in the courts. But, from the point of view of a profession which seeks to maintain standards of decency and fairness, it is essential that the privilege, and the power of doing harm which it confers, should not be abused. Otherwise grave and irreparable damage might be unjustly occasioned. The privilege may be abused if damaging irrelevant matter is introduced into a proceeding. It is grossly abused if counsel, in opening a case, makes statements which may have ruinous consequences to the person attacked, and which he cannot substantiate or justify by evidence. …”

Findings

16 The conduct of the respondent with respect to the letter of 2 March 2006 is clearly conduct in the course of professional practice whilst representing a lay client and accordingly may be characterised as either unsatisfactory professional conduct or professional misconduct.

17 We find that the letter of 2 March 2006 was settled by the Respondent and sent on his advice. It was intended that its contents be conveyed to Magistrate Moore to discourage Magistrate Moore from sitting on 3 March in CC’s matter and/or refusing to disqualify himself from the proceeding. We are further satisfied that the letter was intended to inappropriately influence, or attempt to influence Magistrate Moore in the discharge of his function as a Magistrate. We reject submissions to the effect that the nature of the Extradition Act or powers exercisable by the magistrate in the CC proceedings alter the standard of conduct to be observed by a practitioner when appearing before a Magistrate.

18 The merest perusal of the terms of the letter bespeaks its inappropriate language and threatening tone. Whatever may be said about the earlier correspondence seeking recusal, the deliberate inclusion in the 2nd of March letter of inflammatory language asserting Magistrate Moore’s personal liability for exemplary damages and for unindemnified damages for breaches of international law is clearly intended to intimidate. Certainly, we reject the submissions put on behalf of Mr Slowgrove that that passage of the letter was but a trite statement of the law. Nor do we accept that the letter as a whole was but an example of the fearless advocacy expected of a member of the independent bar in a matter as serious as extradition, as advanced in the letter of 24 January 2007 and repeated in submissions before us.

19 Having regard to the importance placed on the special and delicate nature and public significance of the relationship between bench and bar as discussed in the cases above, we are satisfied that Mr Slowgrove’s admitted actions in settling and advising the sending of the letter of 2nd March 2006 constitute professional misconduct within the definition of that term in the Legal Profession Act, namely, conduct occurring in connection with the practice of law that would justify a finding that he is not a fit and proper person to engage in legal practice. In our view the conduct is of such seriousness that it would, in addition, satisfy the requirements of professional misconduct at common law and the test laid down in Allinson v General Council of Medical Education and Registration [1894] 1 KB 750, namely, his conduct was such that it would reasonably be regarded as disgraceful or dishonourable by his professional colleagues of good repute and competency.

20 In the circumstances, we find that there was also a breach of Rule 56.

Penalty Considerations

21 Before the Tribunal as Exhibit 3 is a letter from the Legal Services Commissioner of 23 October 2006 dealing with the outcome of a complaint made against AA for his participation in forwarding the letter of 2 March. It is apparent from the content of that letter that AA accepted that the letter was ill advised and he had made certain submissions as to his circumstances as they touch upon the matter, including the offer of an apology to Magistrate Moore. We note that the Legal Services Commissioner took the view that AA’s conduct amounted to unsatisfactory professional conduct, and that a caution without publication pursuant to s.540(2)a was an appropriate penalty. Whilst not unmindful of the relatively lenient approach adopted by the Legal Services Commissioner to an apparently inexperienced and contrite solicitor, we consider that the very different circumstances of the Respondent call for other measures.

22 It is plain that the approach to this matter adopted by Mr Slowgrove has varied considerably over the course of the investigation of the matter by the professional body and continued into the conduct of the hearing. It has ranged from the carefully couched denial, as for example his letter of 30 April 2007 addressed to then Bar Association President Mr Slattery QC – “ I fundamentally deny writing any letter on 2 March or at any time threatening to independently sue Magistrate Moore in false imprisonment for exemplary damages if he did not disqualify himself on 3 March 2006….” - to his unapologetic stance in the letter of 24 January 2007 to the Bar Association: “I do not, unlike AA apologise for the letter of 2 March 2006 and stand by its contents. His apology is not binding on me. Magistrate Moore was ‘railroading’ CC and had to be confronted.” Finally came the simple concession made on his behalf before us during the hearing that he had drafted the document. What remains troublingly absent is any indication of contrition, or even a sense of any need for contrition.

23 It was submitted on behalf of the Applicant that the Respondent’s behaviour in March 2006 and since has been characterised by eccentric and wildly idiosyncratic propositions about which the Respondent is vehement and repetitive but which need not lead the Tribunal to take a view that the Respondent is “vicious” in his “wrongheadedness,” and indeed we accept that this is so. We note that there is no medical evidence to assist us in this aspect of our considerations, but we have regard to the background that prior to these events, Mr Slowgrove has long practised as a barrister in good standing in a specialised area of the law.

24 The single most troubling consideration for the Tribunal in seeking to protect the public whilst imposing an appropriate penalty is the Respondent’s evident lack of insight into his behaviour, both as to the letter and his subsequent conduct leading to and throughout the proceeding. He continues to display an unqualified confidence in his arguments in support of his former client, irrespective of the consequences which have in fact played out. It was submitted for the Association that there is no demonstrable personal connection which accounts for the Respondent’s high level of identification with his client’s cause – a trait which in other circumstances might be thought admirable - yet in the face of the Respondent’s ongoing recalcitrance and violence of language in response to the issues in this proceeding, we are concerned by the apparent continued lack of appropriate command of professional judgment and the consequences for his professional life and judgment whilst such insight continues absent.

25 We note that the Respondent has not had a practising certificate since 1 July 2007, so an order for cancellation or suspension would be ineffective. Similarly, a fine would not advance matters in this case. In our view a reprimand, whilst appropriate in respect of the breach of the rules, even a public reprimand is insufficient to deal with the ongoing concerns we have for Mr Slowgrove’s professional conduct following his attempt to intimidate a judicial officer Similarly in the present circumstances neither the imposition of specified conditions nor the imposition of a specified course of education appears appropriate to advance matters either for Mr Slowgrove, or the public.

26 A finding of professional misconduct does not, of course, automatically lead to an order for removal of a Respondent’s name from the Roll: Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470. However, where that finding involves, as here, a finding in effect that the misconduct proven demonstrates unfitness to practise, and where, as here, there is a strong basis for considering that that defect is still operative, it is a course that must be considered. Were such an order made it would have the advantage that it would still be open to Mr Slowgrove to seek his restoration should there be a sufficient alteration in his state of mind. In these circumstances we propose to order the removal of his name from the Roll of Practitioners.

Orders

1. That in respect of the breach of Barrister’s Rule 56 Bradley Slowgrove be publicly reprimanded.

2. That in respect of the finding of professional misconduct Bradley Slowgrove’s name be removed from the Roll of Practitioners.

3. That the Respondent pay the Applicant’s costs of the proceeding.