BRJ v Council of the New South Wales Bar Association [2016] NSWSC 146 is the subject of this sister post about the permissible use of evidence of mental impairment. Two aspects of it deserve their own separate post. The respondent barrister changed her plea twice, once after the liability phase of the hearing but before the decision as to liability was given and once the night before the hearing of her appeal in the Supreme Court of NSW. Each time, she was allowed to do so.
The disciplinary tribunal conducted a trial of the question of liability on the basis that the practitioner admitted the facts, admitted unsatisfactory professional conduct, but argued for the making of no disciplinary orders. It was a plea, with a contest as to disposition, in other words.
When the Tribunal reconvened to deliver its reasons, the barrister respondent applied to adjourn and re-open her case. She wished to adduce evidence that at the relevant time she was not in control of her actions so that there should be no finding of unsatisfactory professional conduct. She said poor legal advice of her previous lawyers explained the change of position. Effectively, she sought to withdraw her plea. Over the Bar Council’s objections, the Tribunal allowed her to do so (compare VCAT’s decision refusing a similar application, albeit after the making of an interlocutory finding that professional misconduct had been established, in Legal Services Commissioner v VB [2012] VCAT 1235).
The Bar Council prevailed in the contest of whether the conduct amounted to unsatisfactory professional conduct in the context of the relationship between the respondent’s illness and the admitted conduct. The barrister appealed that decision.
The night before the appeal was heard, however, the barrister notified the Bar Council that she would argue the next day for the first time that the conduct she was charged with was not unsatisfactory professional conduct at all, even if the mitigating circumstances of her psychiatric illness were not brought into the equation.
The Supreme Court allowed the barrister to do so (see [48] – [53]), treating the question as one of a withdrawal of an admission as to a matter of law. The rule that parties are bound on appeal by their conduct of the case at first instance does not apply in all its rigours when applied to the treatment of legal rather than factual concessions at first instance. The Supreme Court reasoned that her admission was evidence in the Tribunal hearing, it was conducting a rehearing (though not a hearing de novo), there was no cross-examination in the Tribunal, and it was as well placed as the Tribunal to determine the question which the Tribunal was required as a matter of law to determine even in the face of a plea, namely whether the admitted conduct satisfied the test for unsatisfactory professional conduct.
