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Bar Talk
26 February, 2003  
Brett Walker SC, interviewed on ABC 702 Sydney by Sally Loane

Adjunct to “Court of Appeal considers the taxing issue of Clarrie Stevens’ practising certificate”

Sally Loane: In October last year, the Council of the Bar Association of New South Wales decided to cancel the practising certificate of a senior member of the Bar – Clarrie Stevens QC. And that cancellation was to be certified from midnight on November 29. Mr Stevens has been practising for 28 years. He’s been a senior counsel for more than a decade.

And there was one problem, though – this was according to this morning’s Herald story – he hadn’t paid income tax for more than 15 years. He’s still working. How can this possibly be so? Joining me on the line is Bret Walker QC, who is the President of the New South Wales Bar Association. Mr Walker, good morning.

Bret Walker: Good morning.

Sally Loane: How can this be so, if you’ve cancelled his practising certificate?

Bret Walker: It can be so because, unfortunately, the law gives the Supreme Court the power to reverse the decision of the Bar Council, pending an appeal from it. And, unfortunately, in this case, by a decision which I regard as wrong, the Supreme Court decided to do so.

Sally Loane: So you cancelled this decision (sic). He appealed that, and essentially his certificate has been reinstated until that appeal is heard.

Bret Walker: No, although that will serve as a summary. We decided – that is the Bar Council – decided that he was not fit and proper to hold a practising certificate as a barrister. He has a right of statutory appeal against that. The Supreme Court, as I say, unfortunately, has the power to reverse that position temporarily pending the appeal.

That would be all very well if the Supreme Court could hear, and did hear, such appeals quickly – but it doesn’t. But in this case, in my view, the Supreme Court got it wrong in any event – there is an element of scandal.

Sally Loane: You think this is scandalous, that he’s back practising?

Bret Walker: Yes, I do. We opposed the order. Because the order is a discretionary and interim order, we did not regard it as appropriate to spend further public money on taking that to the Court of Appeal. Rather, what we’ve taken to the Court of Appeal – by a separate decision of the Bar Council – is an application by us to have his name removed from the roll of legal practitioners altogether, not just a practising certificate, but to be struck off the roll.

Sally Loane: Completely?

Bret Walker: Yes.

Sally Loane: So he couldn’t practice again, essentially?

Bret Walker: If we are successful in that application, that will be the result.

Sally Loane: In the meantime, how much longer has he got to keep practising? You said – the process is very slow. Is this a matter of months?

Bret Walker: Yes, it is, I’m afraid. The Supreme Court does not have a fast track for such cases.

Sally Loane: So he can practise out there, keep his plaque up, keep practising for months and months?

Bret Walker: That’s exactly right. And if you can detect that I’m not happy with it, you’re absolutely right.

Sally Loane: What else can you do? What else can the Bar Council do?

Bret Walker: We can’t do anything except ask the Supreme Court to have the cases heard as quickly as possible.

Sally Loane: Which could be months, as you say.

Bret Walker: That’s right.

Sally Loane: All right. Is anybody else outraged about this, as well? Is the Law Society also concerned?

Bret Walker: The Law Society hasn’t expressed its concern to us because, after all, we tried as hard as we could for this not to be the case. But it’s not traditional for lawyers, particularly presidents of bar associations, to express themselves as critical of the Supreme Court as I just have now, to overcome, I’m afraid, generations of inhibition to do it. So, no, there hasn’t been a lot of experience.

Normally, because we are bound by court decisions, and if you don’t like a court decision you normally ought to appeal. Normally there is a great deal of silence on the matter. But, in my opinion, this is a good example of why it’s fully appropriate for people to criticise court decisions – and not only if they’re also going to appeal them.

Sally Loane: Has this happened before – when you have cancelled somebody’s practicing certificate, they’ve appealed and they’ve still been out there practicing?

Bret Walker: Yes, it has happened before in a case that concluded last year – and as I should say, concluded with orders being made that the barrister’s practising certificate be cancelled. In other words, the Bar Council was eventually successful in upholding its decision that the person was not fit and proper to be a barrister – notwithstanding that the facts, as I think the history will really clearly show, had not altered one iota between when the Bar Council decided that, almost a year and a half ago – and the eventual decision just before Christmas.

The Court of Appeal had seen fit to give that barrister back a practising certificate pending the appeal. That was also a decision which was regarded as being a wrong decision by the Bar Council.

Sally Loane: How many barristers are there at the moment in Sydney who are practising who you’ve attempted to strike off essentially, or to cancel their practising certificates – only one or two?

Bret Walker: No, there’s only one.

Sally Loane: One, that’s it? All right. You’ve been pretty strict in the last couple of years of this, going through a number of barristers and looking at their practising certificates and whether they should be cancelled or not. How many barristers now are not practising because of this – because of your increased action and scrutiny?

Bret Walker: How many people are former barristers Ö

Sally Loane: Yes.

Bret Walker: Ö I suppose you’re asking?

Sally Loane: Yes

Bret Walker: I am not going to get the number exactly right, but it’s about half a dozen.

Sally Loane: All right. So in the meantime, there’s nothing you can do to speed up the wheels of appeal for Mr Clarrie Stevens?

Bret Walker: Yes, there is. We can ask. We can certainly ask. We will continue to press for as early a date. Of course, these are not the only court cases that have to be heard and the Supreme Court has other lists to consider. But I think I am not alone in regarding these cases as clearly scandalous.

And what is principally scandalous about the present position is that somebody who has been judged by the body given by the law the power to determine – namely the Bar Council – who’ve been judged not fit and proper to have a practising certificate. Nonetheless, without any determination of the merits of that decision, he is entitled to continue practising. My view is that that is a deficiency in the law.

Sally Loane: Is there public liability question here? If you’re a doctor and you’re struck off, if you practise you are in very, very bad trouble and there could be all sorts of, I’d imagine, public liability concerns.

Bret Walker: The same would be true in relation to somebody practising as a barrister who is not entitled to. The point about this case is that, of course, because of the order of the Supreme Court, he is entitled to practise as a barrister – notwithstanding the Bar Council has determined he should not.

Sally Loane: All right. Look, thanks for your time this morning. I appreciate it.

Bret Walker: Not at all.

Sally Loane: Bret Walker SC, the President of the New South Wales Bar Association – obviously speaking out there against that decision. Not happy with it at all.