The Court of Appeal today (Tuesday) heard that a twenty year history of not lodging tax returns was “not relevant” to the cancellation of a barrister’s practising certificate.
Paul Brereton SC was making submissions on behalf of high-flying tax silk Clarrie Stevens who is fighting to retain the practising certificate reinstated by Justice Greg James in the Supreme Court on December 2, 2002.
Bret Walker SC, President of the Bar Association, described Justice James’ minimalist three and a half page decision as “scandalous”.
The Bar Council is appealing against James’ decision on the basis that it was erroneous and failed to protect the public.
The Bar council passed a motion to cancel Stevens’ ticket in October 2002, apparently on the ground that he had neglected to notify the council within seven days of convictions for failing to meet final notices from the ATO to file tax returns for the 1999 and 2000 years.
Not only was Clarrie late in notifying the authorities of this news, Peter Garling SC for the Bar council told the court, but when he finally did, he failed to disclose his less than salubrious history with the ATO.
It emerged in submissions today that Stevens had not filed a tax return during his first 20 years as a barrister, between 1976 and 1996.
According to a report to the Bar council, Stevens had an outstanding tax debt of $1.6 million in 2001, although he did pay $860,000 to the ATO in April 2002.
This seemed largely immaterial to Clarrie’s counsel, who argued that the relevant sections of the Legal Profession Act 1987 – s.38FC and s.38FD – did not require his client to disclose his taxation history.
He argued that a stay on the cancellation of a practitioner’s ticket was at the complete discretion of Justice James.
Anyway, Brereton added, Clarrie wasn’t in the same boat as other barristers notable for their less than exemplary “tax-related conduct”.
Clarence had actually been to see an accountant in 1983, Brereton said, although he conceded not much came of it. His client would be “the first person to accept that he should have been more pro-active”, Brereton told Chief Justice Spigelman and Justices Meagher and Sheller.
But, Brereton argued, this did not amount to a “wanton disregard” of his taxation obligations.
Furthermore, Stevens lodged his first tax returns in 1996, five years before “all the publicity about barristers and tax”, Brereton said. Failing to notify the bar of his 1999 and 2000 tax offences was not sufficient to render Clarrie unfit to practice.
There was “no danger to anyone by Mr Stevens continuing to practice”, said Brereton, before accusing the Bar of “a wholly disproportionate response”.
When Stevens did get around the telling the Bar about his tax convictions, it was another seven weeks before the council moved to cancel his ticket. “No urgency attended his removal from practice,” said Brereton.
Garling retorted that the council’s seven week delay took into account Clarrie’s “professional obligation to his clients”.
Garling added there was no point in the Bar council cancelling a practising certificate if the practitioner could then be granted an unlimited stay.
The Court of Appeal retired at 4.20pm to consider this grave question.
The Bar council’s application to have Stevens struck off the roll is expected to be heard on June 2.
Throughout the proceedings Clarrie and Thalia Stevens sat looking sleek and expensively clad. Thalia wore blood red finger nails and killer high heels. Clarrie was sporting his Aunty Jack hairdo.