Summary of NCAT cases: April 2022

New South Wales Court of Appeal

Council of the New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339

21 December 2021 – Bathurst CJ, Leeming JA and Simpson AJA

In sum: An appeal of the Tribunal’s decision was dismissed with costs. Barrister EFA was found to have engaged in “unsatisfactory professional conduct,” arising from a sexual act committed in relation to an assistant clerk at a dinner. The Court held that it was an isolated incident which was out of character; and accordingly did not warrant a finding of “unfitness” or removal from the roll. The Court declined to recognise a discrete common law species of “professional misconduct” drawn from English authority, which centred on “peer review” disgraceful or dishonourable conduct. The Court confirmed the “crucial criterion” for a determination of professional misconduct to be the “fit and proper person test” provided in s 297 of the Legal Profession Uniform Law (LPUL).

Facts: The Council of the New South Wales Bar Association (“the Council”) commenced proceedings in the Tribunal against EFA for professional misconduct. EFA was a barrister attending a dinner associated with a barrister’s clerk’s conference, during which he became intoxicated. In the course of the dinner, EFA greeted a colleague with a “ritualised greeting which parodied oral sex.” It was then alleged that he moved toward a female colleague, placed his hand behind her head and said “suck my dick.” The Tribunal found that he had not placed his hand on the clerk’s neck, but had said the words “suck my dick”.

Issues on Appeal: The key issues were: did EFA use the words “suck my dick;” whether there was a distinct category of professional misconduct which extended beyond the statutory scope of s 297; whether the conduct of EFA met the threshold for “unfitness;” and whether the Tribunal had erred in only reprimanding EFA by way of penalty.

Held: The appeal was dismissed with costs and the notice of contention (filed by EFA) was dismissed.

New South Wales Court of Appeal

Council of the New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339

21 December 2021 – Bathurst CJ, Leeming JA and Simpson AJA

In sum: An appeal of the Tribunal’s decision was dismissed with costs. Barrister EFA was found to have engaged in “unsatisfactory professional conduct,” arising from a sexual act committed in relation to an assistant clerk at a dinner. The Court held that it was an isolated incident which was out of character; and accordingly did not warrant a finding of “unfitness” or removal from the roll. The Court declined to recognise a discrete common law species of “professional misconduct” drawn from English authority, which centred on “peer review” disgraceful or dishonourable conduct. The Court confirmed the “crucial criterion” for a determination of professional misconduct to be the “fit and proper person test” provided in s 297 of the Legal Profession Uniform Law (LPUL).

Facts: The Council of the New South Wales Bar Association (“the Council”) commenced proceedings in the Tribunal against EFA for professional misconduct. EFA was a barrister attending a dinner associated with a barrister’s clerk’s conference, during which he became intoxicated. In the course of the dinner, EFA greeted a colleague with a “ritualised greeting which parodied oral sex.” It was then alleged that he moved toward a female colleague, placed his hand behind her head and said “suck my dick.” The Tribunal found that he had not placed his hand on the clerk’s neck, but had said the words “suck my dick”.

Issues on Appeal: The key issues were: did EFA use the words “suck my dick;” whether there was a distinct category of professional misconduct which extended beyond the statutory scope of s 297; whether the conduct of EFA met the threshold for “unfitness;” and whether the Tribunal had erred in only reprimanding EFA by way of penalty.

Held: The appeal was dismissed with costs and the notice of contention (filed by EFA) was dismissed.

New South Wales Court of Appeal

Council of the New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339

21 December 2021 – Bathurst CJ, Leeming JA and Simpson AJA

In sum: An appeal of the Tribunal’s decision was dismissed with costs. Barrister EFA was found to have engaged in “unsatisfactory professional conduct,” arising from a sexual act committed in relation to an assistant clerk at a dinner. The Court held that it was an isolated incident which was out of character; and accordingly did not warrant a finding of “unfitness” or removal from the roll. The Court declined to recognise a discrete common law species of “professional misconduct” drawn from English authority, which centred on “peer review” disgraceful or dishonourable conduct. The Court confirmed the “crucial criterion” for a determination of professional misconduct to be the “fit and proper person test” provided in s 297 of the Legal Profession Uniform Law (LPUL).

Facts: The Council of the New South Wales Bar Association (“the Council”) commenced proceedings in the Tribunal against EFA for professional misconduct. EFA was a barrister attending a dinner associated with a barrister’s clerk’s conference, during which he became intoxicated. In the course of the dinner, EFA greeted a colleague with a “ritualised greeting which parodied oral sex.” It was then alleged that he moved toward a female colleague, placed his hand behind her head and said “suck my dick.” The Tribunal found that he had not placed his hand on the clerk’s neck, but had said the words “suck my dick”.

Issues on Appeal: The key issues were: did EFA use the words “suck my dick;” whether there was a distinct category of professional misconduct which extended beyond the statutory scope of s 297; whether the conduct of EFA met the threshold for “unfitness;” and whether the Tribunal had erred in only reprimanding EFA by way of penalty.

Held: The appeal was dismissed with costs and the notice of contention (filed by EFA) was dismissed.