1 HIS HONOUR: This is an application for extension of time to file a summons enabling the plaintiff, Clarence James Stevens, to seek certain orders including that the time be extended to enable him to institute an appeal pursuant to s.38B of the Legal Profession Act 1997 from the cancellation of his practicing certificate and an order pursuant to s.32(2) and (3) of the Act staying the effect or operation of that cancellation until the hearing of that appeal or a further order.
2 It is common ground that the appeal under s.38B is a de novo appeal. It is common ground that the plaintiff’s practicing certificate was cancelled by the New South Wales Bar Council in consequence of its determination of the matters referred to by s.38FC(1)(a) and (b) and arguably also by reason of its determination of the matters referred to in s.38FD(1).
3 I heard extensive oral argument from both Mr. Garling, SC., for the defendant, and Mr. Brereton, SC., for the plaintiff, until approximately 6.30 pm on Friday evening. I was informed during that argument that an application has been made to the Court of Appeal to have the applicant removed from the rolls as not being a fit and proper person to remain a barrister in New South Wales.
4 The orders sought in the summons not only included an order seeking an extension of time to institute the appeal under s.38B but also, as an alternative, a claim for an order in the nature of prerogative review and an order for the setting aside of the decision of the Bar Council and to extend the time to appeal and for the upholding of the appeal under s.38B to which I have referred.
5 Due to the lateness of the hour on Friday, it was not possible to conclude the hearing of the matter. Mr. Garling was unavoidably absent overseas today. Both he and Mr. Brereton were kind enough to put their submissions in writing over the weekend and I have been provided with detailed submissions on behalf of both parties including a submission in reply from the plaintiff.
6 Having regard to the nature of the matter and that which is to come before the Court of Appeal, and that in my view the plaintiff should be permitted to appeal from the determination to the Bar Council presently referred to and that these matters come before this court to be dealt with urgently. I do not consider it appropriate to give detailed reasons for my conclusions. So suffice it to say, I am of the view that there is an argument of some substance in support of the contentions that prerogative relief may go to the Bar Council’s determination.
7 In any event, even if I were not of that view, in aid of what is conceded to be the plaintiff’s right to have a de novo hearing on the question of whether or not the tax offence, which had been the cause of the relevant Bar Council’s decision, was committed in circumstances that show him to be not a fit and proper person to hold a practicing certificate, a stay is appropriate, at least in the interim, to preserve the status quo, as the written submissions show there is a strongly arguable basis for him to contend, dealing with that matter alone, that he should not be the subject of the cancellation.
8 As regards to the alternative basis of cancellation under s.38FD, it is difficult to see the basis upon which the considerations in that section were addressed in the Bar Council’s decision.
9 Mr. Stevens has little practice left on the evidence before me. He has some matters in which he is currently retained due to come before the court early next year. The Court of Appeal has granted no interlocutory relief nor been moved for any against him. It will not be able to deal with the matters on the application unless and until some time substantially later in the year.
10 My attention has been drawn to the usual case law concerning balance of convenience. There are additional factors to be considered in a matter of this sort. But one can accept that they could all be appropriately subsumed within what is referred to by Mahoney, JA. in Shircliff v. Engadine Acceptances (1978) 1 NSWLR 729 at 737 where his Honour refers to the probability or likelihood of success in any such matters:
”... I think the degree of probability or likelihood of success is simply that which the court thinks is sufficient in the particular case to warrant preservation of the status.”
11 Those words apply equally to the balance of convenience. It was submitted that the balance of convenience favoured the Bar Council in that Mr Stevens had little practice left, but against that what practice he has left is no doubt valuable to him.
12 I do not see that the argument that was put to me that the legislation has confided to the Bar Council a statutory role, and therefore that role should be respected to the extent that the order extending the time or the order staying the cancellation of the practicing certificate should not be made is persuasive since the legislature has also expressed its view when it conferred a de novo right of appeal in the circumstances.
13 I am of the view that the orders sought on the interlocutory application should be granted. I would direct counsel to prepare short minutes of the appropriate orders to achieve the effect I have indicated in my views in this judgment.
14 Having heard counsel, I make orders in accordance with paragraphs four and five of the summons and reserve the costs.