Two new cases from NSW

Here’s a 37,000 word long judgment in a professional negligence case against a solicitor which began in early 2000: Rebenta Pty Ltd v Wise [2007] NSWSC 1332. It does not discuss many issues of law. The reason one might want to look at it is that it is one of those rare cases where a dispute about whether there was one ongoing retainer or several more discrete retainers of a solicitor. The solicitor won after a four and a half week trial.

In The Prothonotary of the Supreme Court of New South Wales v. Sukkar [2007] NSWCA 341, the NSW Court of Appeal engaged in a surprising degree of soul searching before deciding to strike an ecstasy importer cum solicitor off the roll of practitioners. The fact that he gave false evidence in his trial did not assist him. The decision is an interesting illustration of the distinction between a finding of want of good fame and character and a finding of professional misconduct where the conduct in question is unconnected with legal practice. The Court of Appeal’s decision in the criminal appeal is reported at Regina v Sukkar [2005] NSWCCA 54. The importation of 124 kilograms of ecstasy earnt the solicitor 14 years in jail. In relation to the appropriateness of a finding of misconduct where the conduct in question is unconnected with legal practice, Basten J said in separate reasons from the majority:

’36 … I agree with his Honour’s assessment of the professional consequences of the conviction. A declaration that Mr Sukkar is not of good fame and character should be made. Knowing involvement in a crime of such seriousness is and should be declared to be inconsistent with the qualities of integrity and willingness to comply with the law which form essential prerequisites of character for a legal practitioner.

37 Whether his conduct constitutes professional misconduct is, however, a separate question. The conduct which constituted the criminal offence did not take place in the practice of law, nor in circumstances in which a lawyer, perhaps as a litigant, engages in activities closely related to legal practice: see, eg, In re Thom; Ex parte The Prothonotary (1962) 80 WN (NSW) 968 at 969 (Herron CJ, Walsh and Wallace JJ agreeing); New South Wales Bar Association v Maddocks (unrep, NSWCA, 23 August 1988) discussed in New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 at [45][48].

38 Two particular incidents arose in Maddocks, which were the subject of consideration by this Court. The first involved a business relationship with a Mr Logan. Pursuant to that relationship, Mr Maddocks had the use of a car which, whilst being driven by his son, was substantially damaged. The car was uninsured at the time, but Mr Logan sought to take out insurance and claim that the damage occurred thereafter. Subsequently apparently unrelated civil litigation was commenced by Logan against Maddocks, in the course of which Maddocks threatened to disclose the insurance fraud unless the proceedings were discontinued. The second incident involved an application by Mr Maddocks to be appointed a director of a company, at a time when he was disqualified as a bankrupt.

39 In Maddocks the three members of the Court addressed the conduct which was outside the barrister’s practice as a barrister, in different ways. Kirby P, after reference to Ziems v The Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279 at 299, noted that some convictions would have no “significance for any professional function” but dismissed the distinction as irrelevant where the subject of the charge was “activity in connection with litigation in the Court”: at p 20.

40 After referring to the same passage in Ziems, Samuels JA spoke in general terms (in his judgment at p 4):

“It is true in the present case that the threat made against Mr Logan had no connection with any professional function of the opponent. But it cannot for a moment be asserted that it had no significance for the conduct of the opponent’s professional obligations. Deficiencies of character and dishonourable conduct, which might render a barrister unfit to practise, may well manifest themselves in transactions which do not form part of the barrister’s professional life. Acts of dishonesty do not cease to be a professional disqualification because they are perpetrated outside the scope of professional engagements.”

41 In relation to the incident with Mr Logan, McHugh JA referred to Ziems and stated (judgment at p 7):

“For a barrister to seek to profit from another person’s breach of the criminal law by not reporting it is contrary to the standard of conduct expected of members of a profession so closely involved with the due administration of justice according to law. It constitutes professional misconduct.”

42 In relation to the failure to disclose his bankruptcy, McHugh JA stated (at p 8):

“However, the question arises as to whether his conduct amounted to professional misconduct? Should his conduct be considered as only that of a private litigant and not as that of a barrister? That is to say, did his failure to disclose to the Court his bankruptcy touch or concern him as a barrister? An analogous problem arose in In Re Thom; Ex parte Prothonotary (1962) … [w]here the Full Court of this State held that a solicitor was guilty of professional misconduct in failing, as required by the then Matrimonial Causes Rules, to disclose his adultery in a suit for the dissolution of his marriage. Likewise the intent of the Opponent to be appointed by the Court as a director, although a bankrupt, should be regarded as professional misconduct since it involves his relationship with the Court.”

43 While it is true, as explained by Spigelman CJ in Cummins at [36]-[65], that any conduct “which would reasonably be regarded as disgraceful or dishonourable by solicitors of good repute and competency”, may be characterised as professional misconduct, it is at least arguable that no purpose is achieved by labelling any conduct of a kind which demonstrates a flaw of character incompatible with membership of the profession as “professional misconduct”: c.f. Cummins at [56]. It is, as the Chief Justice noted in Cummins at [52], a question of usage: nevertheless, the classification loses its significance if applied too broadly.

44 In the present case, however, the finding that Mr Sukkar gave false evidence in the course of his criminal trial, combined with his failure to provide any explanation in these proceedings, are sufficient to demonstrate misconduct of a kind closely related to legal practice and thus constitute professional misconduct. A declaration to that effect is appropriate, but qualified so as to make clear the basis on which it is made.

45 The Prothonotary further seeks declarations to the effect that Mr Sukkar engaged in professional misconduct by failing to report the criminal conduct of his associates to law enforcement authorities, whether State or federal. This claim invites consideration of the inter-relationship between the professional obligation of candour and the general law privilege against self-incrimination which would prevent an individual being guilty of misprision of felony in relation to his or her own criminal conduct. These are large questions which were recently adverted to in the context of a medical practitioner making statements to the Medical Board which did not expose the full extent of his criminality: see Health Care Complaints Commission v Wingate [2007] NSWCA 326 at [43][50]. To say that a person is disqualified by criminal conduct is one thing; to say that there is some additional professional obligation to disclose criminal conduct in which one is or may become involved is another. It may well be necessary to craft an exception to the obligation of candour in relation to criminal conduct, prior to conviction, but this issue was not considered in the present proceedings and accordingly it is not appropriate to make declarations 1(3) and (5) as proposed by the Prothonotary and set out at [1] above.

46 So far as the other elements of the proposed declaration with respect to professional misconduct are concerned, there is a distinction to be drawn between the Court recording the findings of fact upon which its operative orders are based and making declarations identifying the legal consequences of such findings. The need to expose those consequences in the form of a declaration should be a recognised purpose of disciplinary orders: see Cummins at [32] (Spigelman CJ, Mason P and Handley JA agreeing). In addition to a declaration that the giving of false evidence constituted professional misconduct, being proposed declaration 1(4), the facts referred to in proposed declarations 1(1) and (2) should be accepted, but as the basis for a finding of lack of good fame and character, rather than professional misconduct.

47 I would formulate the appropriate orders in this matter as follows:

(1) Declare that Steven Sukkar, having been found guilty upon a charge that he was knowingly concerned in the importation into Australia of narcotic goods (namely, 34.4 kilograms of pure 3,4 methylene-dioxymethamphetamine in an admixture totalling 123.75 kilograms, commonly known as “ecstasy”) and was sentenced to 14 years’ imprisonment with a non-parole period of nine years, is a person who is not of good fame and character. (2) Declare that Steven Sukkar, in giving evidence on oath in September 2003 that he had not knowingly been concerned in the importation before 1 December 2001, that evidence being false to his knowledge, engaged in professional misconduct.

(3) Declare that Steven Sukkar is not a fit and proper person to remain on the Roll of lawyers of the Supreme Court of New South Wales.

(4) Order that the name of Steven Sukkar be removed from the Roll of lawyers of the Supreme Court of New South Wales.

(5) Order that Mr Sukkar pay the Prothonotary’s costs of these proceedings.’

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