PROFESSIONAL MISCONDUCT - UNSATISFACTORY PROFESSIONAL CONDUCT

Council of the New South Wales Bar Association v Berwick [2016] NSWCATOD 81 (23 June 2016)

An application was filed by the Council of the New South Wales Bar Association for disciplinary findings and orders against John Patrick Berwick (“the barrister”). An instrument of consent was filed on 6 May 2016 as follows:

1. A finding that the barrister engaged in professional misconduct by his conduct set out in pars 42

and 81 of the instrument.

2. A finding that the barrister engaged in unsatisfactory professional conduct by his conduct set out in

par 82 of the instrument.

3. An order pursuant to s562 (2) (e) of the Legal Profession Act 2004 (NSW) ("the Act”) that the

barrister be publicly reprimanded.

4. The barrister pay the Council’s costs of the proceedings including costs of the hearing before the

Tribunal, agreed in the sum of $70,000 inclusive of all costs, disbursements and counsel’s fees.

The Tribunal was asked to note the barrister’s undertaking to the Tribunal, the Legal Services Commissioner and the Council that he would not apply for a practising certificate as a barrister or as a solicitor in any jurisdiction at any time in the future (at [5]). The Tribunal proposed to make the findings and orders as set out in the instrument and noted the respondent’s undertaking.

The grounds of the application were:

a) The receipt of two payments of trust monies in contravention of s 252 of the Act;

b) The failure to advise in relation to deficiencies in the statement of claim and the failure to rectify

deficiencies in an amended statement of claim drafted by him;

c) Failure to undertake work necessary for the hearing of an application filed by the ATO for summary

dismissal of the proceedings and failure to appear at the hearing of that application;

d) The delay in paying the ATO’s costs that he was ordered to pay personally;

e) The delay in providing an itemised bill requested on 10 December 2012 until 24 January 2013 in

circumstances where he received payment in June and July 2012.

f) Overcharging.

The Tribunal considered the agreed facts and disputed facts for each of the grounds. Section 564 of the Act states that:

(1) The Tribunal may, with the consent of the Australian legal practitioner concerned contained in a

written instrument, make orders under this Part without conducting or completing a hearing in

relation to the complaint.

.... (4) This section does not apply to consent given by the practitioner unless the practitioner, the

Commissioner and (if applicable) the relevant Council have agreed on the terms of an instrument

of consent.

(5) Without limiting what may be included in the instrument of consent, the instrument is to contain

an agreed statement of facts (including as to the grounds of complaint) and may contain

undertakings on the part of the practitioner. ...

(10) In deciding whether to make orders under this Part pursuant to an instrument of consent, the

Tribunal may make such inquiries of the parties as it thinks fit and may, despite any such consent,

conduct or complete a hearing in relation to the complaint if it considers it to be in the public

interest to do so.

In relation to the discretion to be exercised by virtue of s 564, the Tribunal noted Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 326 ALR 476; CFMEU v Director, Fair Work Building Industry Inspectorate [2015] HCA 46, Council of the New South Wales Bar Association v Butland [2009] NSWADT 177 and Council of the New South Wales Bar Association v Breeze [2015] NSWCATOD 152. It was stated that “... [w]e are of the view that if we are persuaded as to the accuracy of the agreed facts and consequences, and that the findings and orders which the parties propose are an appropriate remedy in the circumstances thus revealed, it is consistent with principle and highly desirable in practice for the Tribunal to accept the parties’ proposal and therefore make the proposed findings and orders.” (at [35]).

The Tribunal found the agreed statement of facts to be thorough and consistent and proceeded on the basis that they were accurate. The Tribunal was of the view that the conduct referred to in par 42 of the instrument of consent means that the barrister engaged in professional misconduct within the meaning of s 467 of the Act (Council of the New South Wales Bar Association v Costigan [2013] NSWCA 407 at [87]) and that the conduct referred to in par 81 of the instrument of consent means that the barrister engaged in professional misconduct within the meaning of s 467 of the Act (Council of the New South Wales Bar Association v Costigan).

In view of the proposed undertaking, the reprimand, the findings of professional misconduct and unsatisfactory professional conduct and the order for payment of the Council’s costs in the sum of $70,000, the Tribunal was prepared to proceed on the basis that no fine be imposed (at [45]).