For the better part of a year there were turgid missives, reports and dark contemplations by the NSW Bar n’ Grill’s Bureau de Spank, concerning allegations that former Federal Court judge Marcus “The Mensch” Einfeld appeared last August in the High Court without one its precious practising certificates.
The drama went as far as the bar council resolving to make a complaint alleging that the human saint had been guilty of either unsatisfactory professional conduct or professional misconduct.
By a last minute rabbit out of the hat The Mensch was saved by his barrister, Bernard Gross QC, who pointed out a small detail that in the welter of correspondence both parties had overlooked.
The disciplinary drama arose from the Kala Subramaniam case, in which the High Court made a decision late last year.
In August 1995 a car owned by the colourful legal character Leigh Johnson failed to stop at a red light in Surry Hills. The identity of the driver was not clear from the photograph produced by the red-eye camera. Johnson was charged but in February the following year her employee Kala Subramaniam made a statutory declaration that she was driving the car.
Johnson was convicted and successfully appealed to the District Court. In December 1996 Subramaniam and Johnson were charged with two counts of perverting the course of justice.
On December 6 the police fitted a former employee of Johnson with a listening devise that recorded a conversation with Subramaniam in which young Kala seemed to admit “taking it” [ie. the rap].
Johnson was discharged on both counts because the taped evidence could not be admitted against her and so there was insufficient evidence to put her on trial. At Subramaniam’s first trial in August 1999 the District Court jury failed to reach a verdict. She applied for a permanent stay because her mental health had deteriorated. The District Court rejected that and the Court of Criminal Appeal also rejected her appeal.
Later, in March 2001 the District Court directed that there be a hearing as to Subramaniam’s fitness to stand trial. In September that year the Mental Health Review Tribunal found she was unfit to be tried as she had been diagnosed with an adjustment disorder with associated anxiety and depression.
The NSW Attorney General then directed that a “special hearing” be conducted into the charges and a trial before a jury of 12 proceeded. There are a number of mandatory explanations that the judge must make to a “special hearing” jury. Subramaniam was found not guilty of giving false evidence but guilty of making the false statutory declaration. The Court of Criminal Appeal dismissed her appeal.
The Mensch, who had retired from the Federal Court in 2001 and had been doing a bit of work at the bar, then climbed into the saddle and took it to the High Court on the ground that the special hearing miscarried because Judge Luland’s introductory remarks fell short of the mandatory requirements.
Subramaniam’s hearing in the High Court was adjourned part heard on April 29, 2004. It resumed and concluded in Canberra on August 5, 2004. On November 10, 2004 the High Court unanimously (Smiler, McHuge, Kirbster, Payne and The Tub) found there had been a miscarriage of justice. The conviction was quashed and a new trial ordered.
At the time of the resumed hearing, on August 5, Einfeld was without a NSW ticket. The file of correspondence shows the mounting agitation of the Grill’s stipes while The Mensch was dashing about saving wretches in miserable corners of the globe. Finally, there is the awful moment when egg appears on the faces of the principal contestants.
Here is a diary of the unfolding complaint process.
July 1, 2004
The bar’s executive director, Philip Selth, tells Einfeld that as of that morning the association still had not received an application for a practising certificate. “I therefore assume that you have retired from practise as a barrister I remind you that it is an offence under the Legal Profession Act 1987 to practise without holding a current practising certificate (s.25) [blah, blah, blah].”
July 29, 2004
Email from The Mensch to president Hormones Harrison saying that he would like to be able to do a few pro bono cases. In May and June he was in the Solomon Islands and as a result of a report he is working on about the crisis in the country’s legal system, “there will be considerable work for members of the NSW Bar”.
Communications in SI are poor, “as a result I did not know that my practising certificate would lapse on June 30”. He asks that any discretionary power Hormones may have in the matter be “urgently exercised in my favour”.
July 29, 2004
Hormones replies to “Dear Marcus” pointing out that a renewal notice was sent out on May 8, 2004, reminder notices were also emailed and there were notices in Bar Brief.
“I would urge you as a matter of priority to lodge your application for a practising certificate for 2005-2005, and not to practise until a certificate is issued. In accordance with the usual practice for any late application, we will require a statutory declaration setting out what court or chamber work (if any) you have undertaken since June 30.”
August 4, 2004
The Mensch faxes a practising certificate renewal application to the bar and a note saying he is to appear in Subramaniam v The Queen in the High Court and that, if necessary, he will tell the Chief Justice he is acting in the capacity as “an agent or something”.
August 4, 2004
The resumption of the Subramaniam case in the High Court is set down for the next day. Selth writes to tell The Mensch that he has not met the continuing professional development prerequisite for the issuing of a practising certificate. Also there was no record of a PI policy being taken out and he has not received a stat dec detailing all the legal work Einfeld has done since June 30.
However, Selth is prepared to issue an special emergency conditional practising certificate provided he has by that afternoon a certificate of insurance from Einfeld and an agreement that he will abide by any bar council decision on his continuing professional development and provide the stat dec on legal work since June 30. He says he will need this agreement before processing the application.
August 5, 2004
The Mensch appears in Canberra for Kala Subramaniam in the part heard High Court appeal and makes submissions in reply.
August 9, 2004
Selth writes again to The Mensch, saying that he was told at 4.30 pm on August 4 by Heath Lambert that a professional indemnity policy had been taken out that day. However, as Einfeld had not advised whether he accepted the other conditions, “a certificate has not been issued to you”. Selth goes on:
“I note that you appeared in the High Court on Thursday 5 August in Subramaniam v The Queen. The transcript does not record you having advised the court that you were not appearing as a barrister”
Selth says he’s referring the whole matter to the bar council.
August 9, 2005
Einfeld writes an impassioned three page, 15-point letter to “Dear Mr Selth”.
“I have your letter of today and am greatly upset and saddened by its contents. As I am again about to leave for overseas to assist oppressed and suffering peoples, and being without secretarial support have to type this letter myself in some haste”
The main points of The Mensch’s missive are: he’s done no work as a barrister in NSW since June 30, 2004; he accepts the advice given to “judges and former judges” by Sir Garfield Barwick and he does not sign statutory declarations unless required by law to do so; he is a person of honour, not some “dissident renegade”, Selth could have rung him on his mobile or sent him a text message while he was on his way to Canberra for the High Court case and he would have given the bar whatever assurances it required; he is surprised Selth is spying on him in searching through transcripts; he thought that his public work and profile “might bring some recognition, even lustre, to the NSW bar as an institution”; finally he withdraws his application for a practising certificate and asks Selth not to use the authority to draw on his credit card.
It is signed, “The Hon Marcus R Einfeld AO QC”.
August 12, 2004
Selth tells Einfeld that the bar council has statutory duties to carry out and the executive director does not have a discretion to issue a certificate other than accordance with the Act. He’s referred The Mensch’s letter to the council.
August 20, 2004
Things crank-up a notch. Helen Barrett, the deputy director of professional conduct, takes over the letter writing for the bar. She tells The Mensch than on August 12 the bar council resolved to refer the papers in relation to his practising as a barrister since July 1, 2004 to a professional conduct committee for consideration and report.
Dominic Toomey, who was junior to The Mensch in the Subramaniam appeal, declared an interest and took no part in the council’s consideration of the issue.
The Mensch was invited to make a submission by close of business on Friday, September 3.
September 7, 2004
Barrett to The Mensch, again. No reply having been received to her letter of August 5, the deadline for his submission was extended to close of business on Wednesday, September 15.
September 14, 2004
The Mensch writes to “Mr/Ms Barrett I understand you have recently written to me.”
His absence from the country in “a remote part of the world” along with failure to receive correspondence, non-working emails and other unfortunate breakdowns in communications are put as explanations for the unhappy misunderstanding.
He reasserts that he is not in practise as a barrister, has not been since July 1, 2004 and it is not his intention to practise in the foreseeable future. He says his appearance in the High Court on August 5 was “a one-off event not of my making or wish I had absolutely no intention or wish to bypass regulatory requirements.”
He said he assumed that his previous certification would enable him to complete the part-heard case.
“As I have not been in professional practice for more than 15 years, the new requirements were not as familiar to me as they would be to others in regular practice. I regret my failure in this regard.”
Further, The Mensch thought the amount he paid or undertook to pay for the certificate and insurance was “punitive” for the right to appear in a matter in which he was not receiving a fee and had to bear his own expenses. “In the circumstances none of this money would even be tax deductible.”
Finally, when he set out for Canberra to appear in the High Court on August 5, he thought he was certified.
“No one called me to say that what I had done and supplied was inadequate If I had thought for a moment that it had not been issued I would have asked the court to hear me without robes as amicus curiae or in some other non-professional representative capacity
“I apologise for this quite accidental and innocent misunderstanding and hope that I may be treated leniently.”
September 17, 2004
Helen Barrett to The Mensch. She would be grateful if he could let her know by Friday, September 24 whether he wished to make a submission to the professional conduct committee.
September 27, 2004
The professional conduct committee produces a seven page report, recommending that the bar council resolve to make a complaint against The Hon M.R. Einfeld AC, QC pursuant to s.134(2)(a) of the Legal Profession Act, 1987, “alleging that Einfeld has been guilty of either unsatisfactory professional conduct or professional misconduct in that, in respect of the matter of Subramaniam v The Queen, Einfeld practised as a barrister and held himself out to be a barrister without being the holder of a current practising certificate as a barrister.”
October 22, 2004
The deputy director of professional conduct, H. Barrett, tells The Mensch that on October 7 the bar council did indeed resolve as the conduct committee recommended.
She invited Einfeld to be heard in relation to whether the bar council is satisfied there is a reasonable likelihood that he will be found guilty by the legal services division of the Administrative Decisions Tribunal.
He is given till close of business on Tuesday, November 2 to come up with the goods.
November 1, 2004
Bernie Gross QC is now in the picture, acting for The Mensch. Gross rings Helen Barrett on October 28 and on November 1 she forwards to him copies of various bits of missing correspondence. Also, she extends the deadline for Einfeld’s response to close of business, Tuesday, November 16, 2004.
November 18, 2004
Gross QC sends the killer letter to H. Barrett.
He said that Selth’s letter of August 4 “surely constitutes an assurance” that for the purposes of Einfeld’s High Court appearance the following day he would be treated as having a PC issued to him.
He further argued that Selth’s letter of August 9 represents a shift in the CEO’s position in that it has “unjustifiably subtracted ex post facto from the assurance [earlier given by the bar’s executive director].
Most importantly, he pointed out that:
“Mr Einfeld when he appeared in the High Court on 5 August 2004, was also a legal practitioner admitted to practice and entitled to practice in the Australian Capital Territory, where the High Court was sitting. He did not need to remain a NSW practitioner in order to appear in Canberra.”
Also, The Mensch was “ethically obliged”, as an ACT practitioner, “to complete his appearance for an indigent litigant in a part-heard criminal appeal before the High Court ”
Gross said the complaint should be withdrawn, but if it isn’t it “should be articulated more clearly, in accordance with the requirements of procedural fairness to which s.125(a) of the Legal Profession Act makes express reference”.
December 8, 2004
Helen Barrett writes to Gross at Selborne Chambers.
“Mr Einfeld did not raise it in his correspondence, nor did the bar council or the committee take [that Einfeld as an ACT practitioner was entitled to conduct a case in the High Court in Canberra] into account. Mr Einfeld did not disclose in his application for a practising certificate that he was admitted in the ACT.”
The matter is referred to the bar council and in the meantime further submissions on behalf of Einfeld should be provided by close of business on Wednesday, December 22, 2004.
February 1, 2005
Gross to Barrett. The bar council would need to review the matter “in light of the failure by the bar council and the committee to appreciate that Mr Einfeld in any event was entitled to appeal in the High Court as a member of the ACT bar”.
February 16, 2005
Barrett to Gross. Sorry for the delay. The bar association is continuing its enquiries and should be in a position to consider Gross’ submission by the end of March 2005.
February 28, 2005
A professional conduct committee of the bar reviews the situation.
It finds that Einfeld never raised in his correspondence the fact that he was admitted as an ACT legal practitioner. However, in his written application for renewal of his NSW practising certificate (which was later withdrawn) it was stated that he was admitted in the ACT, Victoria, South Australia, Western Australia, Tasmania and the Northern Territory.
The committee went on to say that s.55B(1) of the Judiciary Act (Cth) provides that a person who is for the time being entitled to practise as a barrister under a law in force in a territory has an entitlement to practise in any federal court.
The Mensch’s name was on the ACT Supreme Court’s roll of practitioners so he had an entitlement to appear in the High Court on August 5, 2004.
The committee recommended that the bar council withdraw the complaint of October 7, 2004 against The Mensch.
March 30, 2005
Anne Sinclair, the bar’s director of professional conduct, writes to The Mensch saying that the council has withdrawn the complaint.
April 5, 2005
H Barrett advised Gross QC that her file on the matter is “now closed” and thanks him for his assistance.