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Bar Talk
6 August, 2004  
Street of shattered dreams

Strife over Charles Sweeney’s Phillip Street chambers … Barrister before the stipes on “misleading submissions” claim.


There’s been a horrible spat involving Charles Sweeney QC and the sixth/seventh floor set of St James Hall Chambers in Phillip Street.

Sweeney and his company lost their application in the Industrial Relations Commission of NSW for interlocutory orders to prevent the management and other shareholders in the chambers from “interfering with the quiet enjoyment of the applicants of their chambers, entering the chambers without the written consent of the applicants or doing or permitting any act or thing likely to adversely affect the ability of the applicants to perform work or enjoy the premises”.

The commission also declined Sweeney’s claim for $780,000 in relief for unconscionable, harsh and unfair treatment.

Wayne Haylen J said that the application raised questions of professional misconduct and the rights of entry to chambers:

“These matters are more appropriately addressed with the assistance of the parties’ professional association than by attempting to squeeze them uncomfortably within the jurisdiction of the commission under s.106 (Industrial Relations Act).”

If what Sweeney alleges is true, things have been pretty unattractive at his set of chambers. Threats of lockouts, corridor slanging matches and good old-fashioned break and enter have been part of the not-so-hushed recent life in chambers, according to Sweeney.

Apparently the trouble began in February this year when Sweeney, who has maintained chambers in St James Hall for 14 years (he also has chambers at Owen Dixon West in Melbourne), complained about the “inadequacies of the administration”. After he was ignored he withheld his rent.

Notice was served and Sweeney finally paid up but relations did not improve. The other shareholders seemed to badly want to see the back of him. They claimed the 1992 shareholders’ agreement was no longer binding because Sweeney’s lease ran out in 2003.

Taut missives were exchanged culminating in the “unlawful entry” of April 22 which Sweeney describes as “high-handed, outrageous, abusive, oppressive, dismissive, contemptuous and an invasion of privacy”.

Sweeney further accused the other shareholders of secretly hiring a private investigator to check him and his telecommunications system out. Sounds quite exciting. Clearly Sweeney didn’t think so. He claimed all this behaviour was calculated to humiliate him and amounted to nothing less than professional misconduct.

Justice Haylen was not happy with the “jurisdictional flaws which infected the application”. The applicants pleaded work in an “industry” in two ways: work performed by Sweeney QC as counsel and work performed by staff for Sweeney, such as clerking and receptionist services. The judge said:

“The conduct of a professional practice as counsel is not generally regarded as work in an industry and the profession has jealously guarded its unique status.”

Postscript

In his judgment, Wayne Haylen noted that there was evidence that a business “unconnected with the practice of a barrister” was being conducted from Sweeney’s rooms. This business apparently did not require the usual telephone, tea making and receptionist services.

The mind boggles. Perhaps if we knew what kind of business Sweeney was running from St James Hall, we might understand just why the others were so desperate to shove him out.

A matter of good character

There’s nothing Justinian enjoys more than the spectacle of barristers at each other’s starched white throats over the finer points of meaning.

Take the case of the Sydney criminal barristers Richard Button and Daniel Brezniak.

It was Button’s complaint about Brezniak that resulted in the NSW Administrative Decisions Tribunal finding him guilty of unsatisfactory professional conduct. Brezniak conceded this much but not the more onerous charge of professional misconduct, which the tribunal dismissed.

The matter goes back two years and hinges on allegations that Brezniak made misleading submissions about Button’s professional conduct to the NSW Court of Criminal Appeal.

In June 2000, Button appeared for a Mohammed Issa who pleaded guilty to two criminal charges and was sentenced in the NSW District Court.

For his appeal Issa engaged Brezniak, who contended that the sentencing proceedings miscarried because the trial judge took insufficient account of Issa’s good character. This was all Button’s fault, Brezniak told the court:

” in making submissions upon a plea of guilty counsel for the appellant omitted, contrary to the instructions of the appellant, to call any evidence of, and make submissions concerning, the prior good character and reputation of the appellant.”

Unfortunately the evidence, including transcript of the sentencing proceedings and affidavits from Issa and the DPP solicitor, Kay Fleischmann, did not bear this out – as the Court of Appeal judgment duly noted:

” it is quite clear that counsel made a proper and appropriate submissions as to the role of his client Further, counsel chose to tender six testimonials and a letter from the appellant’s wife to the learned sentencing judge in a court room which I gather to have been almost filled with people present to support Mr Issa.”

Brezniak admitted his written submission could have been misleading, but claimed it was all quite unintentional. In hindsight his submission was “not well worded and lacks precision”. He had really meant to refer to Issa’s complaint that Button had not called any oral character evidence. Anyway, Brezniak said he finally corrected this orally before the Court of Appeal.

Unsatisfactory professional conduct, maybe. Professional misconduct, never.

The tribunal agreed. Brezniak’s error “was not one which involved ethics but one which reflected a lack of diligence”. He should have taken “more care to make sure his submissions were accurate”.

The penalty has yet to be decided.