Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256
The appellant, Ralph Edward Smith, was a barrister who had chambers in a building in Penrith. In the same building was a solicitor, Malcolm McDonald, a longstanding friend of Smith’s. They had an arrangement that McDonald and solicitors at his firm would regularly brief Smith, and Smith would refer clients to them.
One client that Smith referred was a Mr Capsanis, a party to divorce proceedings then pending in the Family Court of Australia. Capsanis’ former wife also had an assault case with Andrew Knight, the son of Capsanis’ second wife.
The assault case was listed for hearing in Penrith Local Court on 11 November 1986. Smith appeared and announced his appearance for Knight, but was immediately challenged by opposing counsel. Smith asserted that he was briefed and that he was instructed by McDonald. After some further discussion, the matter was stood down in the list so that McDonald could be in attendance.
Later that day when the matter was mentioned, Smith again asserted that he was instructed by McDonald and said that during the adjournment he had received “a back-sheet specifically relating to this matter”. He indicated that there had been “a misunderstanding” about the backsheet, to the effect that the matter was included in a brief “covering the family matters and property settlement matters and those associated with it”.
The brief which Smith ultimately received at or about 12.15 p.m. was as follows:
“We confirm that we have been instructed by Mr Andrew
Knight at 12.00 p.m. on 11th November 1986 to represent Mr Knight
in respect of an assault action instituted by Noeline (sic)
Capsanis.
We hereby instruct Counsel to appear upon hearing at Penrith Local
Court on 11th November 1986 in respect of the abovenamed, upon the
condition that this office is not responsible for Counsel’s fees in
this matter.”
The events of 11 November were referred to the Bar Association of New South Wales. In due course, the matter was referred to a Disciplinary Tribunal and, ultimately, the Bar Association commenced disciplinary proceedings in the Court of Appeal.
In O’Reilly v. Law Society of New South Wales (1988) 24 NSWLR 204, Clarke JA said:
“care must be taken in reaching a conclusion that the solicitor has lied or deceived the tribunal… It goes without saying that a tribunal needs to be satisfied to that degree of persuasion which is necessary to satisfy the Briginshaw test before it can properly make a finding that a solicitor has lied or deliberately deceived the tribunal”.
It has long been the common law that a court may review, correct or alter its judgment at any time until its order has been perfected eg: Abbott v. Feary (1860) 6 H and N 113 at pp 118-119 [1860] EngR 898; (158 ER 47, at pp 49-50); In re Suffield and Watts; Ex parte Brown (1888) 20 QBD 693, at p 697; Texas Co. (Australasia) Ltd. v. Federal Commissioner of Taxation [1940] HCA 9; (1940) 63 CLR 382, at p 457; Pittalis v. Sherefettin (1986) QB 868, at p 879.).
Part 40, r.9(1) of the Supreme Court Rules (N.S.W.) provided that:
“(that) Court may set aside or vary a judgment where notice of motion for the setting aside or variation is filed before entry of the judgment”.
The power was discretionary and, although it exists up until the entry of judgment, it is one that is exercised having regard to the public interest in maintaining the finality of litigation: Wentworth v. Woollahra Municipal Council [1982] HCA 41; (1982) 149 CLR 672, at p 684. Thus, if reasons for judgment have been given, the power was only exercised if there is some matter calling for review: Marinoff v. Bailey (1970) 92 WN (NSW) 280, at p 284; National Benzole Co. Ltd. v. Gooch (1961) 1 WLR 1489, at pp 1492-1494. And there may be more or less reluctance to exercise the power depending on whether there is an avenue of appeal: State Rail Authority of N.S.W. v. Codelfa Constructions Pty. Ltd. [1982] HCA 51; (1982) 150 CLR 29, at pp 38-39, 45-46; Wentworth v. Rogers (No.9) (1987) 8 NSWLR 388, at pp 394-395.
Before the Court of Appeal, it was accepted that Smith was not briefed to appear in the assault case until some time after midday on 11 November. The issue was whether he believed in the truth of the statement made earlier that day that he was briefed by McDonald and other statements made in the course of the exchange with the presiding magistrate, in particular the statement that McDonald was not at court because he was “engaged in other work”.
McDonald was cross-examined about a conversation in the car park of the Penrith building in which he had his office. He said “I don’t remember talking to (the appellant) about Capsanis”. A little later he said that he was sure he had not spoken to the appellant about Capsanis, explaining “I knew nothing of the Capsanis matter. I had never met Mrs Capsanis. The name never meant anything to me at all until the day of the Local Court issue.”
The Court of Appeal rejected Smith’s account of the car park conversation. It was said by Samuels J.A. (whose factual findings were adopted by Meagher J.A. and, seemingly, by Mahoney J.A.) that:
“Mr McDonald denied that any conversation in these terms
had taken place, and I believe him. The (appellant) had every
reason to assert such an exchange, but Mr McDonald had no reason to
deny it.”
Samuels J.A. also said of the car park conversation:
“The (appellant) did not mention the conversation in his
evidence to the Tribunal or in the ‘draft affidavit’ which he then
tendered and which is, to my mind, a generally candid account of
these events. The conversation is first related in the statement
annexed to the (appellant’s) affidavit filed in these proceedings,
and was repeated in evidence before this Court.”
On the basis that he invented the car park conversation, Samuels J.A. found that:
“the (appellant) did not believe on reasonable grounds
that he was instructed by Malcolm McDonald and Co to appear for
Andrew Knight the (appellant) had no belief in the truth of the
statements he made to the magistrate, and … he deliberately misled
the court by making them. … the (appellant) lied to (the) Court
(of Appeal)”.
As to penalty, Samuels J.A. took the view that censure was sufficient. On the other hand, Mahoney and Meagher JJ.A. considered that Smith’s name should be removed from the roll of barristers. And, in due course, an order was made in those terms with effect from 9 May 1991. Mahoney J.A. said:
“Mr Smith has persisted in his claims, in respect of what
he said to the Magistrate and in respect of the alleged conversation
with Mr McDonald, to the end of the present proceeding. I do not
think that in these circumstances a suspension is appropriate.”
Meagher J.A. said:
“(The appellant) lied to the magistrate, and has
subsequently lied to this Court, and on oath.
It must be in the public interest that the profession be purged of those of its members who succumb to the temptations of mendacity.”
Very soon after publication of reasons for judgment and before the order was entered, Smith moved the Court of Appeal to re-open the matter by reason of the error contained in the statement that he had not referred to a car park conversation prior to the proceedings in that Court. He also sought leave to present further evidence, including evidence of his good character and affidavits from McDonald and from Dr Atef Gabrael, his medical adviser.
The Court of Appeal allowed the application to re-open. Despite Smith’s written submissions to that Court that his application was, inter alia, for a re-opening of the finding of professional misconduct, according to Samuels A.P., “(t)he finding of professional misconduct (was) not challenged.” And although the matter was re-opened, the Court of Appeal ruled that it would not have regard to the further evidence which Smith wished to present.
After reconsidering the matter, Samuels A.P. stated that he was “not now prepared to find that (Smith) fabricated, or invented, the conversation with Mr McDonald, either in his evidence to the Tribunal, or before us”. However, his Honour went on to conclude that, even if it occurred, the conversation was not “adequate to support the reasonableness of any belief which (the appellant) held in the existence of his instructions” and, as the appellant had not relied on the conversation in the Local Court, he “had no belief in the truth of the statements he made to the magistrate”. His Honour repeated his earlier conclusion that “protection of the public does not demand (the appellant’s) disbarment”.
Mahoney J.A. and Meagher J.A. confirmed their original views. The application to set aside the orders of 9 May 1991 was dismissed on 4 July 1991.
Smith appealed on the following grounds:
→ that Mahoney J.A. erred in confirming his opinion on the basis of a conversation some weeks before the “Capsanis incident”
→ that the Court was wrong in refusing to allow Smith to lead character evidence in the second hearing
→ that the Court of Appeal was in error to the extent that it took the view that disbarment should follow its finding that Smith lied to that Court.
Majority decision
The majority consisting of Brennan, Dawson, Toohey, and Gaudron JJ held that:
“29. The error which led to the re-opening of the present case may or may not have been of critical importance in the evaluation of the appellant’s conduct by each of their Honours. That was not the factor on which the nature and extent of the review depended. What must be considered is the question to which the error was relevant and the significance of that question to the decision reached.
30. The error in the present case was relevant to the appellant’s honesty. And that was central to the factual issue to be resolved, namely, whether he believed in the truth of the statements he made at Penrith Local Court during the morning of 11 November 1986. Once the decision to re-open was made, what was required was a reconsideration of his truthfulness in relation to that matter and, because it also bore on the matter, his truthfulness generally. The assessment of a party’s truthfulness may depend, at least in part, on an inference being drawn from known facts (6) Doney v. The Queen [1990] HCA 51; (1990) 171 CLR 207, at p 214. and the assessment of truthfulness, whether generally or in relation to some specific event, can only properly be determined by a consideration of the relevant and available material from which that or the contrary inference might be drawn.”
The majority made the following observations in relation to re-opening the evidence:
“32. It is again necessary to distinguish between the considerations which may bear on a decision to re-open and the processes involved in reconsideration once a case has been re-opened. If an application is made to re-open on the basis that new or additional evidence is available, it will be relevant, at that stage, to enquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application (7) Barker v. Furlong (1891) 2 Ch 172, at p 184; Hughes v. Hill (1937) SASR 285, at p 287. But assuming that that hurdle is passed, different considerations may apply depending on whether the case is simply one in which the hearing is complete (8) As, for example, in Watson v. Metropolitan (Perth) Passenger Transport Trust (1965) WAR 88; Murray v. Figge (1974) 4 ALR 612. or one in which reasons for judgment have been delivered (9) As, for example, in In re Scott and Alvarez’s Contract (1895) 1 Ch 596. It is difficult to see why, in the former situation, the primary consideration should not be that of embarrassment or prejudice to the other side (10) As suggested by Sheppard J. in Joyce v. G.I.O. (N.S.W.) reported in Ritchie’s, op cit, vol.2, pp 8551-8552. But cf. Watson v. Metropolitan (Perth) Passenger Transport Trust; Murray v. Figge; Hughes v. Hill. In the latter situation the appeal rules relating to fresh evidence may provide a useful guide as to the manner in which the discretion to re-open should be exercised. But those considerations bearing on re-opening are not decisive of the question whether, a matter having been re-opened by reason of error, further evidence can be called.
33. Not every case involving error will invite further evidence: it will depend entirely on the issue that is opened up. If the issue is one that invites further evidence, then, prima facie and subject to the ordinary rules of evidence, that evidence should be allowed. We say prima facie because there may be situations in which the particular evidence involved would cause embarrassment or prejudice such that, in the circumstances, it would be unfair to allow it.”
34. As earlier indicated, the critical consideration in the present case was the appellant’s truthfulness in relation to the alleged car park conversation with Mr McDonald or the appellant’s belief that he and Mr McDonald had had such a conversation. The finding that he was not a truthful witness made a review limited to the evidence in the first hearing one that, at least in a practical sense, involved the assumption of a very onerous burden. The appellant had to displace their Honours’ view that he was untruthful and he ought to have been permitted to present further evidence supporting his truthfulness. The exclusion of that evidence meant that there was something less than a complete review of the issue opened up.
The majority discussed the distinction between rejecting the evidence of a witness and the making of a finding that they had lied:
37. It is necessary to say something as to the finding that the appellant lied in the Court of Appeal. There is a difference between the rejection of a person’s evidence and a finding that he or she deliberately lied (11) See, in relation to disciplinary proceedings against a solicitor, O’Reilly v. Law Society of New South Wales (1988) 24 NSWLR 204, at pp 208, 230. In some cases, a rejection of evidence may lead to a finding that that person lied on another occasion. Thus, in the present case, a rejection of the appellant’s evidence in the Court of Appeal led to a finding that he lied in the Penrith Local Court on the morning of 11 November 1986. On other occasions, other evidence may be of such a nature or of such weight that, in combination with the rejection of some particular evidence, it will justify a finding that that evidence was fabricated. But, as a matter of logic and common sense, something more than mere rejection of a person’s evidence is necessary before there can be a positive finding that he or she deliberately lied in the giving of that evidence.
38. It is particularly important in disciplinary cases, where the honesty and candour of legal practitioners assume special significance, that the distinction between the rejection of a person’s evidence and a positive finding that he or she deliberately lied be observed. The mere rejection of evidence can neither justify a consequence over and above that which properly attaches to the matter charged, nor deprive the person of the benefit of personal considerations which might otherwise be taken into account.
The majority observed that no allegation of deliberately lying was made against the appellant before the adverse finding was made. Furthermore, “evidence which might have affected the finding of deliberate lying was erroneously rejected”. Consequently, the findings as to his dishonesty and order for his disbarment could not stand.
Deane J’s decision
Deane J agreed with the orders proposed by the majority.
Deane J identified two relevant requirements of procedural fairness – that the allegations against the practitioner be specifically identified and that the practitioner be afforded an appropriate opportunity of being heard in relation to them.
Deane J held that in this case, “the Court of Appeal’s original order that the appellant be disbarred was affected by a denial of procedural fairness for the reason that the appellant had never been given an appropriate opportunity of being heard in relation to the question whether his evidence of the carpark conversation was deliberately false”.
Finally, Deane J clarified that “that nothing in this judgment should be read as supporting a proposition that the Court of Appeal can never, in disciplinary proceedings, make or act on a finding that the practitioner concerned gave deliberately false evidence before it”.
This case sets out the factors for re-opening the evidence after a trial or before an order has been perfected. Those factors are whether the proposed evidence in question could have been adduced at first instance, the potential importance of the evidence to the outcome of the case and whether prejudice or embarrassment would be occasioned to a party.
This case confirms the distinction between rejecting the evidence of a witness and a finding that they have lied under oath. This case also affirms the need for legal practitioners to be afforded procedural fairness before any findings that they have lied under oath are made by putting them on notice of the possibility of such findings and an adequate opportunity to respond.
